(concurring and dissenting):
I agree that the complaint must be dismissed but my reasons for so doing differ from those of the plurality.1
The defendants, in addition to the Domegal School District Board of Education, are its president, its superintendent of schools, and other school officials. The complaint alleges that Zeller was excluded' by the defendants from the high school’s soccer team because “he was in violation of rule 18 of [Donegal High School’s] code of conduct for athletes in that his hair was not ‘trimmed above the' ears and neatly trimmed in back.’ ” The district court dismissed the action as failing to state a substantial federal question.
. As noted by the plurality, Brent Zeller’s only demand for relief not rendered moot by his graduation is his demand for money damages. Assuming arguendo that a federal question is raised by the complaint, an award of damages against school officials nevertheless is subject to the qualified immunity which they enjoy. In Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), decided after this case was submitted to the court en banc, the Court held that a school official is immune from liability for compensatory damages in civil rights suits brought under 42 U.S.C. § 1983 unless
he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the students affected, or if he took the action with the malicious intention to cause a deprivation of constitutional *609rights or other injury to the student. A compensatory award will be appropriate only if the school board member has acted with such an impermissible motivation or with such disregard of the student’s clearly established constitutional rights
Id. at 322, 95 S.Ct. at 1001.
The complaint makes no allegations indicating a malicious intent on the part of defendants toward Zeller. The absence of malice is confirmed by the statement of facts stipulated by the parties and by the evidentiary hearing conducted pursuant to Zeller’s motion for a preliminary injunction. The determination of whether a constitutional right is “clearly established,” or is “basic” and “unquestioned,” id., may prove to be an onerous burden for the school board. See id. at 328-329, 95 S.Ct. 992. (Powell, J., concurring and dissenting). The tortuous history of this case, however, obviously indicates that Zeller’s exclusion from the soccer team was not in violation of his clearly established constitutional rights. As Judge Aldisert observes, the circuit courts are divided almost evenly on whether hair cases in a school context implicate constitutional values, and the Supreme Court has not addressed itself to the question. The issue here perhaps is more sophisticated and complex since Zeller’s complaint is predicated on his exclusion, not from school, but only from the soccer team. Under these circumstances and under the state of the law as it existed when the Donegal School Board took its action, the right asserted by Zeller was not clearly established and unquestioned under the Constitution.
I therefore agree with the plurality that the complaint must be dismissed. Since this case was submitted en banc to consider whether a student has a constitutional right to wear long hair, and since the plurality decides that he does not, I feel constrained to address the issue.
As I read Judge Aldisert’s opinion, he would deny a federal forum for any claim by a student against school officials predicated on a deprivation of an alleged constitutional right to long hair, irrespective of whether the complaint sought injunctive, declaratory, or monetary relief. I well can understand his agitation in view of the current overwhelming groundswell in the federal courts of claims by litigants asserting constitutional deprivations under color of state law.2 Troublesome as the overcrowding of our dockets may be, this distasteful development must not distract us from the essential legal question before us.
The legal issue confronting the plurality is whether the right asserted by Brent Zeller implicates constitutional values. Judge Aldisert holds that “plaintiff’s contention does not rise to the dignity of a protectable constitutional right.” This conclusion rests upon the premise that the federal court system is “ill equipped” in certain areas of state regulation where, as in the student hair cases, “the wisdom and experience of school authorities must be deemed superior and preferable to the federal judiciary’s.” I find these arguments appealing but I have reservations about their relevance for they go more to the latitude which courts should give school authorities in regulating constitutional rights, rather than to the existence of such rights.
The resolution of the issue depends very largely upon the point of beginning. Do hair cases commence because a student desires to wear his hair according to the latest styles, or do they begin because school officials arbitrarily demand uniformity in hair grooming? It seems to me a succinct distillation of the issue in hair cases is whether a student can be deprived of his education or the opportunity to compete on athletic teams because his hair style violates a school regulation. See Sherling v. Townley, *610464 F.2d 587, 588-89 (5th Cir. 1972) (Tuttle, J., concurring). Stated in different terms, does a school district encroach significantly upon the personal freedom of a student when it curbs or regulates his hair style?
I agree with Judge Aldisert that a student’s right to groom his hair is not derived from the right of privacy found within the penumbra of the Bill of Rights or within the ninth amendment. Hair, after all, is worn for all to see. Therefore, I do not view the right as fundamental in nature.
I am unable to agree that the right has no constitutional basis. Rather, I must subscribe to the view expressed in those cases that hold the right of a student to groom his hair is part of the sphere of personal liberty protected by the due process clause. This was the view initially suggested in Gere v. Stanley, 453 F.2d 205 (3d Cir. 1971), in which we stated that if the right to long hair exists under the Constitution, “it must arise under the ‘liberty’ and ‘due process’ portions of the Fourteenth Amendment,” id. at 207 n. 4; and that the right was subject to “reasonable regulations” by the state. Id. at 209. The background of this personal right is based upon considerations expressed eloquently by Mr. Justice Brandéis in another context when he stated:
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.
Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting).
I also believe that the right of a student to govern the length and style of his hair has equal protection overtones. See Massie v. Henry, 455 F.2d 779, 783 (4th Cir. 1972). A regulation which denies the student access to his education or to competitive sports merely because his hair exceeds the length specified by the school regulation creates two classes of students. One class is denied the public education guaranteed by the constitution of Pennsylvania and the other class receives it. In the words of Judge Wisdom, “[t]he defining characteristic of the deprived class is that it is composed of males whose hair exceeds the length specified by the regulation.” Karr v. Schmidt, 460 F.2d 609, 621 (5th Cir. 1972) (Wisdom, J., dissenting).
The plurality opinion would, as I read it, deny students a federal forum for their hair claims regardless of the arbitrariness of the regulation, or the classification created thereby. If a school board arbitrarily may regulate the length of a male student’s hair, may it not also arbitrarily require that he wear no hair? If a school board arbitrarily may regulate the length of a student’s hair, may it not also capriciously require female students to shear their hair? I cannot believe that such a result is countenanced by the due process and equal protection clauses. At the very least, a classification must have some “fair and substantial relation to the object of the regulation so that all persons similarly circumstanced shall be treated alike.” Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920), quoted in Johnson v. Robison, 415 U.S. 361, 375-76, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). I am unwilling, burdensome as it is, to shut the doors of the federal courthouse to the redress of such constitutional deprivations.
I would be the first to acknowledge that personal freedoms are rarely absolute, especially in a school environment. Students in a public school are expected to submit to reasonable regulations pertaining to attendance, curriculum, and *611their relationships to their faculty and peers. Personal freedoms in a school environment “must yield when they intrude upon the freedom of others.” Bishop v. Colaw, 450 F.2d 1069, 1075 (8th Cir. 1971). School officials should be afforded considerable latitude in reconciling the personal freedom of their students with the needs and purposes of school discipline and education. Also, as Judge Aldisert observes, the courts are ill-equipped to draw lines in hair cases or to plot permissible hair contours. A school regulation, therefore, impinging upon the personal freedom of a student should be measured by a determination as to whether there is a legitimate justification for the regulation. If school officials can prove a rational basis for a hair regulation, whether it promotes the furtherance of valid educational goals, health, or other legitimate purposes, they may restrict a student’s personal freedoms consistent with both the due process and equal protection clauses.3
The application of such a test should produce several beneficial results. First, school authorities would be afforded the wide discretion they need in the complex task of educating our youth. Second, students would be discouraged from instituting actions unless there clearly was no legitimate basis for a regulation, a matter of no small concern in this age of congested court calendars. Finally, but perhaps most importantly, school authorities would be encouraged to promulgate regulations that are rational not arbitrary, legitimate not capricious.
Were it not for the mootness of all of Zeller’s demands for relief except his demand for money damages, I would remand the case back to the district court for a determination as to whether there was a legitimate basis for rule 18 of the code of conduct for athletes. As it is, I concur in the dismissal of the complaint.
. In reviewing judicial proceedings, an appellate court must affirm a correct judgment of the district court even when that decision is based on an inappropriate ground or an incorrect reason. Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 82 L.Ed. 224 (1937); PAAC v. Rizzo, 502 F.2d 306, 308 n.1 (3d Cir. 1974).
. Other reasons for the recent explosion of federal litigation are analyzed carefully by Judge Friendly in his provocative publication, Federal Jurisdiction, A General View (1973).
. It should be noted that this test is less restrictive than the one used in Stull v. School Board, 459 F.2d 339 (3d Cir. 1972), where the reasonableness of the hair regulation was judged in terms of other alternatives open to school officials. In my view, once school officials prove a legitimate justification for a regulation, a federal court’s inquiry should be at an end.