Bishop v. Colaw

• Decision Date: 06 December 1971
• Docket Number: No. 20588.,20588.
• Citation: 450 F.2d 1069
• Parties: Stephen BISHOP, a Minor, et al., Appellants, v. Frank COLAW et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

450 F.2d 1069 (1971)

Stephen BISHOP, a Minor, et al., Appellants, v. Frank COLAW et al., Appellees.

No. 20588.

United States Court of Appeals, Eighth Circuit.

October 27, 1971.

On Suggestion for Rehearing December 6, 1971.

Michael D. Dunlop, St. Louis, Mo., for appellants.

J. William Newbold, Clayton, Mo., for appellees.

Before ALDRICH,^* LAY and BRIGHT, Circuit Judges.

On Suggestion for Rehearing En Banc December 6, 1971.

BRIGHT, Circuit Judge.

The school administration of St. Charles, Missouri, a suburb of St. Louis, Missouri, in March 1970, suspended fifteen year old Stephen Bishop from school attendance solely because his hairstyle violated provisions of the school dress code. Stephen and his parents brought this action seeking to obtain his readmission, and a declaratory judgment overturning the dress code regulations governing the hair length and style of male students. Plaintiffs assert that these regulations violate Stephen's, and his parents', personal rights guaranteed by the United States Constitution. Plaintiffs base jurisdiction upon 42 U.S. C. § 1983 and upon 28 U.S.C. § 1343. After the district court denied the Bishops any relief, they brought this timely appeal. We have reviewed the record and reverse the district court for the reasons stated below.¹

The St. Charles high school administration incorporated the hair-length regulations into a dress code during the 1969-70 school year. The pertinent regulations in effect at the time of Stephen's expulsion provided as follows:

Section 4. HAIR:

A. All hair is to be worn clean, neatly trimmed around the ears and back of the neck, and no longer than the top of the collar on a regular dress or sport shirt when standing erect. The eyebrows must be visible, and no part of the ear can be covered. The hair can be in a block cut.

B. The maximum length for sideburns shall be to the bottom of the ear lobe.

A few days after school opened in September 1969, the physical education teacher objected to Stephen's hairstyle because it was not tapered in the back and above the ears as was then required by the existing regulations. Following several conferences involving Stephen, his parents, the principal, and the assistant principal, Stephen's hair was trimmed to conform to the regulations. In November, the same teacher protested the length of Stephen's hair, and following additional conferences with the administration, Stephen again cut his hair. In January 1970, after the hair-length regulations had been modified to allow for a block cut, Stephen's mathematics teacher complained that Stephen's hair was too long in the back and over the ears. In response, Stephen trimmed his hair in back, and after additional conferences between the assistant principal and Stephen's father, Stephen's hair was made to comply with the regulations by also trimming it over the ears. Finally, in February 1970, Stephen and his parents refused to acquiesce in the further demands of the school administration that Stephen's hair be trimmed again. Stephen was suspended a few days later,² and the instant litigation followed.

In recent years, the federal courts have found themselves increasingly embroiled in hair-length controversies resulting from the enforcement of regulations similar to that promulgated by the school administration of St. Charles High School. The Supreme Court has, on several occasions, refused to review the constitutional questions raised in this area. E. g., Jackson v. Dorrier, 424 F. 2d 213 (6th Cir.), cert. denied, 400 U.S. 850, 91 S.Ct. 55, 27 L.Ed. 88 (1970) (upholding regulation); Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969), cert. denied, 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268 (1970) (holding regulation unconstitutional); Ferrell v. Dallas Independent School District, 392 F.2d 697 (5th Cir.), cert. denied, 393 U.S. 856, 89 S.Ct. 98, 21 L.Ed.2d 125 (1968) (upholding regulation). What little guidance we have from the Court in this area is conflicting. Justice Black, writing as Circuit Justice in Karr v. Schmidt, 401 U.S. 1201, 91 S.Ct. 592, 27 L.Ed.2d 797 (1971), took the position that state regulation of matters such as hair length raises no issue of constitutional dimensions calling for review by federal courts. On the other hand, Justice Douglas, dissenting from a denial of certiorari, argued that state regulation of hair length raises a serious equal protection question. Ferrell v. Dallas Independent School District, 393 U.S. 856, 89 S.Ct. 98, 21 L.Ed.2d 125 (1968), denying cert. to 392 F.2d 697 (5th Cir. 1968). In addition, several courts of appeals have considered the validity of hair regulations similar to those presented here against a broad range of constitutional attacks.

The Seventh Circuit has ruled in favor of the students, holding that a student's right to govern the style and length of his hair is a personal freedom protected under the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment. Crews v. Cloncs, 432 F.2d 1259 (7th Cir. 1970);³ Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969), cert. denied, 398 U.S. 937, 90 S.Ct. 1836, 26 L. Ed.2d 268 (1970). Under that circuit's decisions, the state carries a "substantial burden of justification" for regulations which infringe upon this freedom. Crews v. Cloncs, supra, 432 F.2d at 1264 (quoting Griswold v. Connecticut, 381 U.S. 479, 503, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). (White, J., concurring)).

The First Circuit has also concluded that students possess a constitutional right to wear their hair as they choose. Richards v. Thurston, 424 F.2d 1281 (1st Cir. 1970). The First Circuit's approach differed slightly, however, from that of the Seventh Circuit. In Richards, the court found that the right of students to determine their personal appearance is "implicit in the `liberty' assurance of the Due Process Clause." Id. at 1284. The court said:

We do not say that the governance of the length and style of one\'s hair is necessarily so fundamental as those substantive rights already found implicit in the "liberty" assurance of the Due Process Clause, requiring a "compelling" showing by the state before it may be impaired. Yet "liberty" seems to us an incomplete protection if it encompasses only the right to do momentous acts, leaving the state free to interfere with those personal aspects of our lives which have no direct bearing on the ability of others to enjoy their liberty. * * *

We think the Founding Fathers understood themselves to have limited the government\'s power to intrude into this sphere of personal liberty, by reserving some powers to the people. The debate concerning the First Amendment is illuminating. The specification of the right of assembly was deemed mere surplusage by some, on the grounds that the government had no more power to restrict assembly than it did to tell a man to wear a hat or when to get up in the morning. The response by Page of Virginia pointed out that even those "trivial" rights had been known to have been impaired — to the Colonists\' consternation — but that the right of assembly ought to be specified since it was so basic to other rights. The Founding Fathers wrote an amendment for speech and assembly; even they did not deem it necessary to write an amendment for personal appearance. We conclude that within the commodious concept of liberty, embracing freedoms great and small, is the right to wear one\'s hair as he wishes.

Id. at 1284-1285 (footnotes omitted). The court went on to note that, although this right is not a "fundamental" freedom which can be impaired only by showing a compelling state interest, the burden of justifying restrictions on this freedom still rests with the state.

The Fifth, Sixth, and Ninth Circuits⁴ have sustained school codes regulating hair. Ferrell v. Dallas Independent School District, 392 F.2d 697 (5th Cir.), cert. denied, 393 U.S. 856, 89 S.Ct. 98, 21 L.Ed.2d 125 (1968); Gfell v. Rickelman, 441 F.2d 444 (6th Cir. 1971); Jackson v. Dorrier, 424 F.2d 213 (6th Cir.), cert. denied, 400 U.S. 850, 91 S.Ct. 55, 27 L.Ed.2d 88 (1970); King v. Saddleback Junior College District, 445 F.2d 932 (9th Cir. 1971). Each has adopted a different approach in sustaining these regulations.

In King, supra, 445 F.2d at 940, the Ninth Circuit held that students have no "substantial constitutional right" to wear their hair as they desire. As a consequence, school authorities need not present proof of actual classroom disruptions to support hair regulations. Mere opinion evidence of teachers or school administrators that long hair interferes with the educational process will suffice.

The Sixth Circuit, although not recognizing a specific constitutional right to determine one's hair length and style, requires proof that the appearance of the students caused classroom or other school disruptions. Implicit in these decisions is a recognition of the principle that the state has the burden of establishing the reasonableness of its regulations. See Gfell, supra, 441 F.2d 444; Jackson, supra, 424 F.2d 213.

The Fifth Circuit's decisions have turned on the reasonableness and necessity of the regulations. In Ferrell, supra, 392 F.2d 697, the court, while recognizing the right of students to govern their personal appearance, held that this right was not unreasonably infringed because the school board was able to demonstrate a need for the regulations to control disruptions attributable to controversies over student hair lengths which departed from the more conventional styles. The court carefully distinguished a district court decision⁵ which had struck down a similar regulation because "no suggestion was made that such hairstyles had any effect upon the health, discipline, or decorum of the institution." 392 F.2d at 703.

In a subsequent decision, another panel of the Fifth Circuit did not hesitate to strike down a regulation restricting the style, rather than the length, of hair. Griffin v. Tatum, 425 F.2d 201 (5th Cir. 1970)....