Karr v. Schmidt

Decision Date28 April 1972
Docket NumberNo. 31045.,31045.
Citation460 F.2d 609
PartiesChesley KARR, a minor, Individually and John R. Karr, Individually and as next friend and Guardian Ad Litem on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. Clifford SCHMIDT, Principal of Coronado High School, et al., etc., Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

A. R. Grambling, Morris A. Galatzan, Harold L. Sims, El Paso, Tex., for defendants-appellants.

Ruth Kern, Clarence D. Moyers, El Paso, Tex., for plaintiffs-appellees.


LEWIS R. MORGAN, Circuit Judge:

This is another of the multitude of lawsuits which have recently inundated the federal courts attacking hair length regulations promulgated by local public school authorities.

Appellee Chesley Karr is a sixteen-year-old student at Coronado High School in El Paso, Texas. On August 12, 1970, Karr attempted to enroll for his junior year at that school but was not permitted to do so because he was in violation of a school board regulation limiting the length of male students' hair.1 After several conferences with school board officials proved futile, Karr filed suit in federal court seeking injunctive and declaratory relief.

After a four-day trial, the district court, 320 F.Supp. 728, concluded that the denial of a free public education to Karr on the basis of this regulation violated the due process and equal protection guarantees of the Federal Constitution. The court enjoined school board officials to enroll Chesley Karr and to refrain from enforcing the hair-length regulation.

On motion of the school authorities, this court stayed the district court's injunction pending appeal. Karr then petitioned the late Mr. Justice Black in his capacity as Circuit Justice for the Fifth Circuit to vacate the stay of injunction pending appeal. Mr. Justice Black denied the petition, 401 U.S. 1201, 91 S.Ct. 592, 27 L.Ed.2d 797, observing:

There is no * * * direct, positive command about local school rules with reference to the length of hair state school students must have. And I cannot now predict this court will hold that the more or less vague terms of either the Due Process or Equal Protection Clauses have robbed the States of their traditionally recognized power to run their school system in accordance with their own best judgment as to the appropriate length of hair for students.
* * * * * *
There can, of course, be honest differences of opinion as to whether any government, state or federal, should as a matter of public policy regulate the length of haircuts, but it would be difficult to prove by reason, logic, or common sense that the federal judiciary is more competent to deal with hair length than are the local school authorities and state legislatures of all our 50 States. Perhaps if the courts will leave the States free to perform their own constitutional duties they will at least be able successfully to regulate the length of hair their public school students can wear.

The appeal from the district court's judgment is now before this court on the merits. Believing, as did Mr. Justice Black, that appellee Karr's asserted right to be free of school regulations governing the length of his hair is one that is not cognizable in federal courts, we reverse with direction that the case be dismissed for failure to state a claim for which relief can be granted.


The Fifth Circuit first considered the constitutional validity of hair length regulations in Ferrell v. Dallas Independent School District, 5 Cir., 1968, 392 F.2d 697, cert. den. 393 U.S. 856, 89 S. Ct. 98, 21 L.Ed.2d 125. That case involved a factual context closely paralleling the case at bar. The plaintiffs were high school students barred from school by a hair-length regulation similar to that utilized by Coronado High School in the instant case. In its opinion, this court assumed without deciding that "a hair style is a constitutionally protected mode of expression",2 but concluded that school authorities might place restrictions upon this "right" if those restrictions served "compelling" state interests. The court held that the interest of the state "in maintaining an effective and efficient school system" was a compelling state interest sufficient to justify the regulation.3

Since Ferrell, the circuit has considered high school hair and grooming regulations in numerous other cases. In each of those cases, except one, the validity of such regulations was affirmed in this court.4 In one case, Dawson v. Hillsborough County, Florida School Board, 5 Cir., 1971, 445 F.2d 308, this court affirmed a district court finding that a local school hair regulation was unconstitutional because it was unrelated to legitimate school board objectives.


The district court, relying on Ferrell and the subsequent Fifth Circuit cases, ruled that "one's choice of hair style is constitutionally protected" and that the burden was upon school authorities to demonstrate that long hair resulted in disruption of the educational process. The district court held that:

If the school authorities are unable to support factually their rule, offering speculation only, the rule is * * * unreasonable and hence in violation of the equal protection and/or due process clauses of the Fourteenth Amendment. * * * "The touchstone for sustaining such regulations is the demonstration that they are necessary to alleviate interference with the educational process." Griffin v. Tatum, 5 Cir., 1970, 425 F. 2d 201, 203.

In applying this test, the district court heard evidence from both parties. Witnesses for the defendant school board were three students, two teachers, two student activities directors, three assistant principals, four principals, and the school superintendent. All of these witnesses testified, in substance, that students with long hair caused distraction in the classroom, disciplinary problems, health problems, and safety problems.

Plaintiff called 17 witnesses on his behalf. Of these, three were members of the Karr family, and nine were students either at Coronado High or at other schools in the El Paso area. In the main, the students testified that they did not believe that long hair caused disciplinary problems, other than the problems created when attempts were made to enforce the hair length regulation. Several students did, however, acknowledge that they had witnessed or heard of fights between long and short-haired students. Also called was a former teacher who had taught high school in Austin, Texas, and in Oklahoma, who testified that she saw no rational basis for a hair-cut code. Finally, the plaintiff called three, "expert" witnesses—a psychologist, a college English teacher, and a college political science teacher. The essence of this "expert" testimony was that there is no correlation between hair length and conduct; that hair regulations may alienate students from school authorities; and that the regulations may adversely affect the parent-child relationship.

After hearing this conflicting evidence, the district court made findings of "fact". It concluded that "the overwhelming preponderance of the relevant, credible evidence indicates * * * that the presence and enforcement of the hair-cut rule causes far more disruption of the classroom instructional process than the hair it seeks to prohibit". The court then discussed each of the separate justifications proffered by the Texas school authorities. The court concluded that the contention of school authorities that long hair could be prohibited because it is difficult to keep clean was invalid because the length of hair is unrelated to "habits of personal hygiene one develops through parental training * * *". The court held that a preponderance of the evidence supported the finding that long hair does not create a safety hazard in science laboratories. With regard to discipline, the court held that disciplinary problems were created not by the presence of long-haired students but by efforts to enforce the long-hair regulation. With respect to the undisputed testimony that fights had occurred between long and short-haired students, the court ruled that the proper course of action for the school board was to "teach tolerance" rather than banning long hair. Having found, as a matter of fact, that there was no reasonable relationship between the regulation and legitimate school board objectives, the court concluded as a matter of law that the regulation violated the Due Process and Equal Protection clauses of the Federal Constitution.


In view of the district court's holding that the school board failed to sustain its burden of justification, this court is now called upon to decide the question which it reserved in Ferrell: Is there a constitutionally protected right to wear one's hair in a public high school in the length and style that suits the wearer? We hold that no such right is to be found within the plain meaning of the Constitution.

It has been argued that the First, Eighth, Ninth, Tenth, and Fourteenth Amendments and the penumbras therefrom supply a basis in the Constitution for such a right. We reject each of these theories; nevertheless, we shall consider each of them.

A. The First Amendment.—The most frequently asserted basis for a constitutional right to wear long hair lies in the First Amendment.5 It is argued that the wearing of long hair is symbolic speech by which the wearer conveys his individuality, his rejection of conventional values, and the like. Accordingly, it is argued that the wearing of hair is subject to the protection of the First Amendment under the principles announced in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).

We find considerable difficulty, however, with th...

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