Karr v. Schmidt

RONEY, Circuit Judge

(dissenting):

I dissent on a very narrow ground. I would hold that there is a Federal Constitutional question involved where students have virtually no choice as to what school they will attend for public education through the high school level, resulting as a practical matter in compulsion by the government, and where the school hair-length regulation follows them out of the schoolhouse door.

As other courts have had occasion to note, a student can indulge in most vagaries of dress and behavior during non-school hours and then abandon them at the schoolhouse steps, but he cannot grow and ungrow his hair. Breen v. Kahl, 419 F.2d 1034, 1038 (7th Cir. 1969);1 Richards v. Thurston, 424 F.2d 1281, 1285 (1st Cir. 1970); 2 Westley v. Rossi, 305 F.Supp. 706, 713 (D.Minn. 1969);3 Dunham v. Pulsifer, 312 F.Supp. 411, 419 (D.Vermont 1970).4 Thus, a regulation requiring a student to shorten his hair effects a substantial intrusion, into his private life in a way that is important to him, where the *625school board has no authority or reason to interfere.

It is precisely this kind of intrusion into the private lives of citizens which the Ninth Amendment was designed to protect against. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).

. “. . . it would be impossible to comply with the long hair regulation during school hours and follow the wishes of the students and their parents as to hair length outside of school . . . ”

. “. . . a school rule which forbids skirts shorter than a certain length while on school grounds would require less justification than one requiring hair to be cut, which affects the student twenty-four hours a day, seven days a week, nine months a year.”

. ‘‘The rule here has effect beyond school, so were a school to prohibit a boy attending school with no shirt and bare to the waist, if he desires to go bare waisted in life at home or beyond the school he may take off the shirt as he leaves the school grounds. Such is not the case with hair . . . The hair restriction ... invades private life beyond the school jurisdiction.”

. “Garments can be changed at will whereas hair, once it is cut, has to remain constant for substantial periods of time.”