join, dissenting:
Hair styles change. A high school boy if he chooses should be able to wear his hair as Yul Brynner does or as Joe Namath does without fear of being deprived of an education by a majority of. school board members who grew up at a time the crew-cut was fashionable.
Individual rights never seem important to those who tolerate their infringement. Yet the Bill of Rights and the Fourteenth Amendment were designed to limit the reach of majority control over fundamental personal rights. Many young men and boys regard long hair as an expression of affinity with their peers and disapproval of the older generations’ handling of the Vietnam War and current social problems. Some may wear their hair long because the girls like it long. Either way, the right to wear one’s hair as one pleases is a fundamental right implicit “within the commodious concept of liberty, embracing freedoms great and small”. Richards v. Thurston, 1 Cir. 1970, 424 F.2d 1281.
Today a majority of this Court assembled en banc holds that it is but a trifling interference with a young person’s freedom to deny him the right to wear his hair as he pleases. The Court apparently takes its cue from the late Mr. Justice Black’s suggestion that the only “serious” aspect of a “long hair case” is “the idea that anyone should think the Federal Constitution imposes on the United States courts the burden of supervising the length of hair that public school students should wear”. The Court tells us that hair length is not a “fundamental” matter, and with a few pecks at the typewriter advises the district courts of this circuit that they no longer need distract themselves with lawsuits of the gossamer stuff of this one. With due respect for our late Circuit Justice1 and for my Brethren on this Court, I cannot subscribe to today’s decision. In it, I discern no tenable explanation for the Court’s holding that the interest in governing one’s own personal appearance is an insubstantial interest unprotected by the Constitution.
1.
I begin with the premise that the Bill of Rights is not a comprehensive catalogue of all the specific rights possessed by the people of this nation against the federal government. Indeed, Madison introduced the Ninth Amendment to the Constitution in response to the arguments of Hamilton and others that the enactment of a Bill of Rights was dangerous: dangerous because an enumeration of the people’s rights might suggest “that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.” I Annals of Congress 439 *620(Gales and Seaton ed. 1834). Thus the Ninth Amendment reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The Bill of Rights, then, does not provide an exhaustive list of the rights of the American people to freedom from government interference. I see no hint that today’s majority disagrees with that conclusion. Nor do my Brothers dispute the suggestion that the Bill of Rights also provides no complete index of the rights guaranteed by the Due Process Clause against invasion by the states. Instead, the Court takes the position that there are at least some personal rights protected from state interference though not specifically sheltered by provisions of the Bill of Rights. The Court does not say so; but it apparently reaches this conclusion through the Due Process Clause directly, as Mr. Justice Harlan would have; or through the Due Process Clause read in light of the Ninth Amendment, in the fashion suggested by Mr. Justice Goldberg’s opinion in Griswold v. Connecticut, 1965, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510.
I join the Court’s statement that “federal courts should recognize . • . substantive constitutional rights only where ‘fundamental’ individual liberties are at stake.” But in determining whether this particular liberty is “fundamental” or not, the majority and I part company.
The majority establishes a “spectrum” of values along which individual liberties may be “ranked”, and proceeds to “rank” a high school students’ right to determine the length of his hair along with “the lesser liberties that may be in-the same minimum test of rationality that applies to all state action.” We are told that “numerous factors” explain this ranking, but when the dust has settled the Court adduces only two “factors” in support of its decision to withhold recognition to this right as fundamental.
First, the Court says, “the interference with liberty is a temporary and relatively inconsequential one” which “leave[s] these students a rather wide range of personal choice in their dress and grooming.” I fail to see what the duration of this limitation on personal freedom has to do with its seriousness. For many students, however, hair regulations will restrict their personal appearance for four, or even six years. That is hardly a de minimis restriction, if indeed our Constitution can be construed to overlook “small” infringements of constitutionally guaranteed interests. And I do not think it can. Moreover, if the “temporary” aspect of these regulations is what prevents them from infringing fundamental human rights, I suppose that today’s decision would authorize a city ordinance on hair regulations for the general adult population limited in duration to, say, the summer months. Most important, though, the “wide range of choice” which students supposedly retain is substantially reduced by today’s decision, which strikes from the district court dockets all complaints which “[allege] the constitutional invalidity of a high school hair and grooming regulation.” The Court has given the public high schools in this Circuit a green light to ban jeans, T-shirts, sandals, wide ties, maxi skirts, “distraetingly” colorful garb of all kinds — in short, the chosen attire of many of our young people. Indeed, as I read the Court’s opinion, it precludes constitutional examination of a public high school requirement of a daily uniform dress. And yet, to justify today’s per se rule, the Court assures us that students retain considerable latitude in determining their own dress and appearance.
I am equally unpersuaded by the Court’s argument that hair regulations are constitutionally unassailable because (superficially) they resemble a number of other restrictions on student liberty. This test of “inverse quantitative insubstantiality” has an imposing, reverberative resonance, but so far as I am aware, it is a novel test for the resolution of important constitutional issues. After a nod in the direction of school board au*621tonomy, the Court acknowledges that the real basis for its second rationale is the spectre of school officials being ruled into court to justify the restrictions which they impose on their students. As if desegregation were not enough for school officials to worry about! It is true that the Court’s decision aborts the development of potentially far-reaching litigation over the rights of students, but these considerations do not explain the Court’s belittling characterization of a young person’s right to present himself to the world as he pleases so long as he causes no one any harm. Almost every day, the federal courts spawn new classes of litigation — most recently, perhaps, litigation over the constitutional rights of women. Regrettable as the overcrowding of our dockets may be, in and of itself the prospect of exacerbating that condition is no reason to blink a violation of a liberty which obviously means a great deal to many young people. Thus the Court’s second justification for concluding that hair rules do not infringe fundamental liberties is but a statement of certain constitutionally irrelevant consequences of its decision. It is by no means a true justification for the conclusion the Court reaches.
To me the right to wear one’s hair as one pleases, although unspecified in our Bill of Rights, is a “fundamental” right protected by the Due Process Clause. Hair is a purely personal matter — a matter of personal style which for centuries has been one aspect of the manner in which we hold ourselves out to the rest of the world. Like other elements of costume, hair is a symbol: of .elegance, of efficiency, of affinity and association, of non-conformity and rejection of traditional values. A person shorn of the freedom to vary the length and style of his hair is forced against his will to hold himself out symbolically as a person holding ideas contrary, perhaps, to ideas he holds most dear. Forced dress, including forced hair style, humiliates the unwilling complier, forces him to submerge his individuality in the “undistracting” mass, and in general, smacks of the exaltation of organization over member, unit over component, and state over individual. I always thought this country does not condone such repression.
My differences with the Court’s understanding of “fundamental” rights are differences of legal attitude and philosophy. Judge Learned Hand once described “fundamental” as a word “whose office usually, though quite innocently, is to disguise what [judges] are doing and impute to it a derivation far more impressive than their personal preferences, which are all that in fact lie behind the decision.” L. Hand, The Bill of Rights 70 (1958). I am sure Judge Hand would agree that his comments are equally applicable to judges’ refusal to attach the “fundamental” label. For me, though, hair length regulations impinge upon the “fundamental” diversity, freedom, and expressiveness of our society, no small portion of which is comprised of students in our public schools.
II.
I disagree strongly with the majority’s disposition of the equal protection issue. The district court held that the hair regulation in question created two classes of citizens: those who are denied the public education guaranteed them by the Texas Constitution, and those who receive that education. The defining characteristic of the deprived class is that it is composed of males whose hair exceeds the length specified by the regulation at issue. Unimpeachably, the district court reasoned that “any distinction between those who receive this right [to a free public education] and those who do not must have a reasonable basis and must reasonably relate to the purpose for which the classification is made.” After detailed consideration of the evidence, the district court concluded that the distinction drawn by their hair regulation “has no reasonable relationship * * * to its professed purposes or to the educational process as a whole.” The district court found that the classification established by the hair *622regulation is “utterly unreasonable” and therefore that it violated the Equal Protection Clause of the United States Constitution.
The majority disposes of this finding by ignoring it. The Court adopts a framework of Equal Protection analysis that is, with all respect, just dead wrong. For purposes of argument, let us assume that the Court’s denial of the “rigorous” standard of Equal Protection review is required here, and let us acknowledge that “the classification is invalid under the Equal Protection clause only if this court can perceive no rational basis on which it is founded.” So far so good. But the Court departs from the proper analytic framework when, in part IV of its opinion, it states that “the appropriate standard of review is simply one of whether the regulation is reasonably intended to accomplish a constitutionally permissible state objective.” (Emphasis added.) The Court accepts a test for rationality which looks exclusively to the intentions or goals of those who enact a law or promulgate a regulation. This sidestep frees the Court from dealing with the district court’s specific and heavily factual finding that this hair regulation completely fails to accomplish its stated objectives. Thus the Court concludes:
In this case, it is evident from the record that the school authorities seek only to accomplish legitimate objectives in promulgating the hair regulation here in question. The record nowhere suggests that their goals are other than the elimination of classroom distraction, the avoidance of violence between long and short haired students, the elimination of potential health hazards, and the elimination of safety hazards resulting from long hair in the science labs.
But the goals of the school authorities have nothing at all to do with the resolution of this case, in view of the district court’s explicit finding that “the distinction drawn has no reasonable relationship * * * to its professed purposes.” The motivations, goals, purposes, or objectives of those who enact laws may help courts to understand the effects of those laws. See Hall v. St. Helena Parish School Board, E.D.La. 1961, 197 F.Supp. 649, aff’d per curiam 368 U.S. 515, 82 S.Ct. 529, 7 L.Ed.2d 521 (1962); Davis v. Schnell, S.D.Ala., 81 F.Supp. 872, aff’d per curiam 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093 (1949); Poindexter v. Louisiana Financial Assistance Commission, E.D.La.1967, 275 F.Supp. 833, aff’d per curiam 389 U.S. 571, 88 S.Ct. 693, 19 L.Ed.2d 780 (1968). See Note, Legislative Purpose and Federal Constitutional Adjudication, 83 Harv.L.Rev. 1887 (1970). But it has never been held that “a legislative act may violate equal protection solely because of the motivations of the men who voted for it.” Palmer v. Thompson, 1971, 403 U.S. 217, 224, 91 S.Ct. 1940, 1944, 29 L.Ed.2d 438. Given this premise, the failure of a law or regulation to achieve constitutionally permissible objectives surely cannot be cured by the good intentions of those who enact it.
Instead, the proper inquiry is to evaluate the classification actually created by a statute or regulation in light of its avowed or readily discernible objective. As Chief Justice Burger stated for the Supreme Court only a few weeks ago, the Equal Protection Clause withholds from the states “the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation’ ” Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971).
Reed and all its forebears make clear that the majority today has not addressed itself to the question before us on this appeal, namely, whether denying a public high school education to a young man because he has long hair does in fact — not in hope, aspiration, or theory — bear “a fair and substantial re*623lation” to the objectives of the regulation. The district court carefully considered each of the objectives proffered by the school authorities in this case. In light of the evidence presented to it, the district court concluded that weeding out long haired young men bore no “reasonable relationship” to the stated objectives. As I read the specific, point-by-point analysis by the district court, that court found “[from] the overwhelming preponderance of evidence” that long hair restrictions have no appreciable effect upon the achievement of legitimate educational objectives. As Judge Aid-rich, concurring, pointed out in Bishop v. Colow, 8 Cir. 1971, 450 F.2d 1069: “The connection between long hair and the immemorial problems of misdirected student activism and negativism, whether in behavior or in learning, is difficult to see. No evidence has been presented that hair is the cause, as distinguished from a possible peripheral consequence, of undesirable traits, or that the school board, Delilah-like, can lop off these characteristics with the locks”.
The district court’s finding of fact is not questioned by the majority today. Indeed, the majority does not even address itself to this finding as a result of the “intentions-objectives-goals” test it embraces blindly. Nor do I believe that the burden of proof applied below was erroneous. The district court stated that the school authorities not only failed to sustain the burden of proof placed on them by a “compelling interest” test, but in addition failed to prove to the court’s satisfaction that the hair regulation was even reasonable. My Brothers seem to overlook the ever-present possibility that one who does not bear the burden of proof, as the school authorities did not under the rational relation test, may nevertheless fail to convince the finder of fact of his point of view. And that is precisely what happened below:
Not only have defendants failed to sustain [the substantial burden imposed on them by a “fundamental” interest analysis], but the Court finds, from the preponderance of credible evidence, that in fact there is no reasonable relationship between the length of male high school students hair and any alleged disruption of the educational process it is defendants’ duty to maintain. This is not a case where the state supported factually the connection between its interest and the regulation in question. Nor is this a case where the state’s evidence was uncontroverted. This Court has studied the evidence offered by both sides with utmost care, made its credibility choices, including the weighing of opinions offered by both sides for expertise and underlying basis, and has found nothing to justify the regulation here attacked but undifferentiated and unrealized fears and speculations. A substantial preponderance of the credible evidence establishes that the justifications urged are in fact unreasonable and that the regulation does more harm than good.
Thus the Court today manages to promulgate a per se rule upholding hair regulations while in not a single word, phrase, sentence, or paragraph does it challenge the district court’s considered finding that the rule before us bears no reasonable relation to the accomplishment of a legitimate state objective. Nor does the Court say that any error of law infected the judgment of the lower court in arriving at the finding of unreasonableness. How is today’s sleight of hand achieved? By sugaring over with talk of “good intentions” the total failure of this regulation to carry those intentions into effect. I dissent from this novel and unexplained method of writing the Equal Protection Clause out of our Constitution even if it threatens to impose on this Court the task of bringing to fruition the full spectrum of rights which high school students enjoy with all other Americans.
I ask: What is the important state interest that permits a public school board to deny an education to a boy whose hair is acceptably long to his parents *624but too long to suit a majority of the School Board of El Paso, Texas?
I submit that under the First and Fourteenth Amendments, if a student wishes to show his disestablishmentarianism by wearing long hair or has the whim to wear long hair, antidisestablishmentarians on public school boards have no constitutional authority to prevent it.
. I am still unwilling to ascribe a similar view to the Supreme Court as a whole. It is true that the Court has only recently refused to grant certiorari in a “long hair” case arising in the Tenth Circuit. Freeman v. Flake, 1972, 405 U.S. 1032, 92 S.Ct. 1292, 31 L.Ed.2d 489, den’g cert. from 448 F.2d 258. Mr. Justice Douglas dissented from the denial of certiorari, as he had earlier this Term in Olff By and Through Olff v. East Side Union High School District, 1972, 404 U.S. 1042, 92 S.Ct. 703, 30 L.Ed.2d 736.
Under any circumstances, “the denial of a writ of certiorari imports no expression of opinion upon the merits of the case. . ” United States v. Carver, 1923, 260 U.S. 482, 490, 43 S.Ct. 181, 182, 67 L.Ed. 361, 364. See generally Stern and Gressmnn Supreme Court Practice § 5.7, and cases cited. It is particularly fitting to recall this maxim when “[t]he federal courts are in conduct and the decisions in disarray,” as they are in their treatment of the problem before us today. The Supreme Court is responsible for ensuring that constitutional rights are uniform throughout this nation; it is hard to believe that the Court will close its eyes eternally to the disparate recognition now being given the constitutional rights of students who quite fortuitously inhabit different judicial circuits.