(concurring and dissenting).
This case in this court’s view involves the constitutional rights of a sixteen year old school boy in his shoulder-length hair and goatee. To my mind, however, the case turns on a different constitutional issue, the vital one of whether the federal courts have the power under the Constitution of the United States to enforce school rules involving such matters as the length of school-boy hair. I believe that the District Court did not possess the jurisdiction, the power, to entertain Gere’s suit and that the suit should have been dismissed on that ground and no other since the issue of jurisdiction ordinarily should be decided in limine prior to any decision on the merits.
The issue was superbly put by Justice Black, as Circuit Justice, in Karr v. Schmidt, 401 U.S. 1201, 1202-1203, 91 S.Ct. 592, 27 L.Ed.2d 797 (1971). He said:
“I refuse to hold for myself that the federal courts have constitutional power to interefere in this way with the public school system operated by the States. And I furthermore refuse to predict that our Court will hold they have such power. It is true that we have held that this Court does have power under the Fourteenth Amendment to bar state public schools from discriminating against Negro students on account of their race but we did so by virtue of a direct, positive command in the Fourteenth Amendment, which, like the other Civil War Amendments, was primarily designed to outlaw racial discrimination by the States. There is no such 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 Clause have robbed the States of their traditionally recognized power to run their school systems in accordance with their own best judgments as to the appropriate length of hair for students.
“[O]ur Constitution has sought to distribute the powers of government in this Nation between the United States and the States. Surely the federal judiciary can perform no greater service to the Nation than to leave the States unhampered in the performance of their purely local affairs. Surely few policies can be thought of that States are more capable of deciding than *211the length of the hair of schoolboys. 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.”1
I can add nothing of consequence.
I must respectfully dissent from the basis of decision of the majority opinion which is in accord with that of the Trial Judge. I concur in the judgment of this court but do so on a ground quite apart from the majority reasoning which is intended to support it.
. Compare Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), school desegregation; Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), school prayers. Cf. Berryman v. Hein, 329 F.Supp. 616 (D. Idaho 1971), length of hair under school dress code.