concurring in part, dissenting in part.
In this case, the same public employer terminated employment of the plaintiff as a school bus driver because of his wearing a moustache but took no similar action concerning his employment as a school teacher. In the posture of the case as presented to us by way of summary judgment, the respective actions are so obviously inconsonant that they “may be branded ‘arbitrary,’ and therefore a deprivation of [the appellant’s] ‘liberty’ interest in freedom to choose his own [manner of appearance.]” Kelley v. Johnson, 425 U.S. 238, 248, 96 S.Ct. 1440, 1446, 47 L.Ed.2d 708 (1976). I therefore concur in the result reached in the majority opinion.
I do not, however, deem it necessary to retreat from what I regard as the salutary guidelines laid down in Miller v. School District No. 167, 495 F.2d 658 (7th Cir. 1974), and I therefore respectfully dissent from that portion of the majority opinion.
The line of distinction between the two cases is certainly a fine one but nevertheless one which has discernible status. As I read Miller, its actual holding is that in cases of the present type, involving a claim by a public employee of denial of an interest in the liberty of personal appearance, the federal courts should not embark upon the task of balancing rationality against irrationality. In the present case, the action of the school authorities, as the facts must be taken by us, do not require any such balancing; the denial of employment as a school bus driver cannot be characterized other than as arbitrary and capricious. This, to paraphrase the language of Miller, was a restriction so extreme that it would be readily condemned as an unconstitutional deprivation. Id. at 664.
The unusual facts of the present case of antagonistic right and left hands should not be, in my opinion, the basis for weakening the controlling principles laid down in Miller.