(concurring).
I concur.
This case for me is not one of easy decision. On the surface, one can be somewhat troubled with the fact that overloaded federal dockets are further burdened with cases which center their controversies on the length of a school boy’s hair. It may well seem appropriate that this issue does not involve a question of substantial constitutional dimension. Freeman v. Flake, 448 F.2d 258 (10 Cir. 1971), or that such problems should be left to local authorities, King v. Saddleback Jr. College District, 445 F.2d 932 (9 Cir. 1971). Nevertheless, a state’s invasion into the personal rights and liberty of an individual, of whatever age or description, should present a justiciable issue worthy of federal review. There is little doubt that this regulation seeks to restrict a young person’s personal liberty to mold his own lifestyle through his personal appearance. To say that the issue is not “substantial” turns a deaf ear to the basic values of individual privacy and the freedom to caricature one’s own image. Our institutions do not rely on submerging individual personality in order to create an “idealized” citizen. Cf. Meyer v. Nebraska, 262 U.S. 390, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). The abhorrence of such treatment stems from the enlightened philosophy that school children must be given every feasible opportunity to grow in independence, to develop their own individualities and to initiate and thrive on creative thought.
Moreover, to say simply that the problem is best left to local authorities be-means the intrinsic constitutional issue involved. Such a rationale could sustain any school prohibition of the recognized constitutional rights of students. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).
The question confronting us is whether there exists any real educational purpose or societal interest to be served in the discipline the school has adopted. After due consideration I fail to find any rational connection between the health, discipline or achievement of a particular child wearing a hair style which touches his ears or curls around his neck, and the child who does not. The gamut of rationalizations for justifying this restriction fails in light of reasoned analysis. When school authorities complain variously that such hair styles are inspired by a communist conspiracy, that they make boys look like girls, that they promote confusion as to the use of rest rooms and that they destroy the students’ moral fiber, then it is little wonder even moderate students complain of “getting up tight.” In final analysis, I am satisfied a comprehensive school restriction on male student hair styles accomplishes little more than to project the prejudices and personal distastes of certain adults in authority on to the impressionable young student.
On Suggestion for Rehearing En Banc
A Judge of this Court has, on his own motion, requested a rehearing en banc in this case and has suggested the appropriateness of such rehearing en banc. The Clerk of the Court has transmitted the suggestion to the Judges of the Court who are in regular active service.
It is now here ordered that the motion for rehearing en banc is denied for the reason that the suggestion has failed to obtain the vote of a majority of the Circuit Judges who are in regular active service.