(dissenting):
The majority opinion casts so dense a smokescreen about this case that one might easily lose sight of the narrow legal question involved. The East Hartford Board of Education (“board”) has not attempted to emulate the Manchu conquerors of China or Peter The Great. The citizenry of East Hartford is not now marching about in “death’s livery,” pigtailed and clean-shaven as a result of the board’s perfidy. Rather, those charged by law with the operation *847and control of the public schools have required that the male teachers in their employ wear ties at work in most circumstances. The appellant claims that this is prohibited by the Constitution, a conclusion which the majority supports with great indignation but little precedent or logic. Because I am convinced that the board’s action does not violate the Constitution, I respectfully dissent from the majority opinion.
I. Teaching as a First Amendment Activity; The Role of the Federal Courts.
In the vast majority of communities, the control of public schools is vested in locally-elected bodies.1 As has been noted many times by both state and federal courts, this commitment to local political bodies implies significant public control over what is said and done in school. See Note, Developments in the Law — Academic Freedom, 81 Harv.L.Rev. 1045, 1052-54 (1968); Eisner v. Stamford Board of Education, 440 F.2d 803, 807-08 (2d Cir. 1971). It is not the federal courts, but local democratic processes, that are primarily responsible for the many routine decisions that are made in any school system. Accordingly, it is settled that “[cjourts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate constitutional values.” Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968).
If this sound doctrine of local control is to have any meaning, it is necessary that the federal courts refrain, in most instances, from interfering with the decisions of school authorities. Decisions of local boards may be foolish or unwise, and still pass constitutional muster. We do the court a grave disservice when we enforce, in the name of the Constitution, the pet educational theories of the federal bench, whatever they may be. In the guise of enforcing federal law, we transform ourselves into a federal school board, deciding on the appropriateness of textbooks, or, as here, settling the scope of a dress code. Such decisions have no place in the federal courts so long as school authorities stay within the broad area committed to their discretion.
Only last term, the Supreme Court made precisely this point in Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), which dealt with a high school’s summary disciplinary proceedings, challenged on due process grounds. Mr. Justice White stated for the Court:
It is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion.
The system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members, and § 1983 was not intended to be a vehicle for federal-court corrections of errors in the exercise of that discretion which do not rise to the level of violations of specific constitutional guarantees.
Id. at 326, 95 S.Ct. at 1003.
The notion that teaching is itself a “First Amendment activity” stands this policy on its head. Under such a rule, it is clear that any action taken by a school board will “sharply and directly implicate constitutional values,” and the rule set out in Epperson and Wood will be reduced to an empty formula. Under the majority’s holding, every public school teacher who feels that his employers have made an incorrect decision will be able to invoke the aid of the federal courts. The result will be either endless and expensive litigation over the trivia of education or a complete abdication of responsibility by local school boards.
In short, the majority’s opinion is nothing more than a vehicle by which federal judges may enforce their concepts of sound educational policy against the wishes of locally-elected bodies, specifically charged by law *848with making these decisions. As Judge Mulligan wrote for a unanimous panel in Presidents Council, District 25 v. Community School Board No. 25, 457 F.2d 289 (2d Cir.), cert. denied, 409 U.S. 998, 93 S.Ct. 308, 34 L.Ed.2d 260 (1972):
The ensuing shouts of book burning, witch hunting and violation of academic freedom hardly elevate this intramural strife to first amendment constitutional proportions. If it did, there would be a constant intrusion of the judiciary into the internal affairs of the school. Academic freedom is scarcely fostered by the intrusion of three or even nine federal jurists making curriculum or library choices for the community of scholars. When the court has intervened, the circumstances have been rare and extreme and the issues presented totally distinct from those we have here.
Id. at 292. In that case, we upheld the action of a school board in limiting library access and forbidding further purchase of a book it found objectionable. First Amendment rights were implicated far more clearly there than in the instant case. We should follow the holding of Presidents Council and keep the courts out of the business of education.
II. The Symbolic Speech Claim.
The mere fact that the plaintiff has invoked the magical phrase “First Amendment” casts no burden on the state. In eases involving expressive conduct, the threshold requirement is that the plaintiff demonstrate that his activities are arguably within the scope of the amendment. Appellant has failed to do so.
Appellant claims that by refusing to wear a tie, he communicates an entire set of values to his students. Specifically, in his brief he claims the following benefits from his mode of dress:
(a) He wishes to present himself to his students as a person who is not tied to “establishment conformity.”
(b) He wishes to symbolically indicate to his students his association with the ideas of the generation to which those students belong, including the rejection of many of the customs and values, and of the social outlook, of the older generation.
(c) He feels that dress of this type enables him to achieve closer rapport with his students, and thus enhances his ability to teach.2
Appellant’s claim, therefore, is that his refusal to wear a tie is “symbolic speech,” and, as such, is protected against governmental interference by the First Amendment.
Obviously, a great range of conduct has this symbolic, “speech-like” aspect; the claim has been advanced for any number of activities.3 To state that activity is “symbolic” is only the beginning, and not the end, of constitutional inquiry. United States v. Miller, 367 F.2d 72, 78-79 (2d Cir. 1966), cert. denied, 386 U.S. 911, 87 S.Ct. 855, 17 L.Ed.2d 787 (1967). See Note, 66 Mich.L.Rev. 1040, 1046 (1968); cf. People v. Cowgill, 274 Cal.App.2d Supp. 923, 78 Cal.Rptr. 853, appeal dismissed, 396 U.S. 371, 90 S.Ct. 613, 24 L.Ed.2d 590 (1970) (Harlan, J., dissenting from dismissal). Even though intended as expression, symbolic speech remains conduct, subject to regulation by the state. As the Supreme Court has stated in discussing the difference between conduct and “speech in its pristine form”:
We emphatically reject the notion urged by appellant that the First and Fourteenth Amendments afford the same *849kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speech. . . .We reaffirm the statement of the Court in Giboney v. Empire Storage & Ice Co., [336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834 (1949)] that “it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.”
Cox v. Louisiana, 379 U.S. 536, 555-56, 85 S.Ct. 453, 464, 13 L.Ed.2d 471 (1965) (citations omitted). The rule of Cox, which involved a mixture of activity and speech, applies with even greater force in a case such as this one, where only conduct is involved. See United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).
Thus, we are required to balance the alleged interest in free expression against the goals of the school board in requiring its teachers to dress somewhat more formally than they might like. United States v. Miller, supra, 367 F.2d at 80. Compare Karst, Legislative Facts in Constitutional Litigation, 1960 Supreme Court Review 75, 77-81 with Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 912-14 (1963). Let us consider the factors involved in this balancing test.
As conduct becomes less and less like the “pure speech” explicitly protected by the First Amendment, the showing of governmental interest required is progressively lessened. See Alfange, Jr., Free Speech and Symbolic Expression: The Draft Card Burning Case, 1968 Supreme Court Review 1, 22-27; Note, Symbolic Speech, 43 Ford-ham L.Rev. 590, 592-93 (1975); Note, Symbolic Conduct, 68 Colum.L.Rev. 1091, 1121-25 (1968). In those cases where governmental regulation of expressive conduct has been struck down, the communicative intent of the actor was clear and “closely akin to ‘pure speech.’ ” Tinker v. Des Moines School District, 393 U.S. 502, 505, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Thus, the First Amendment has been held to protect wearing a black armband to protest the Vietnam War, Tinker v. Des Moines School District, supra 4 burning an American Flag to highlight a speech denouncing the government’s failure to protect a civil rights leader, Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969), or quietly refusing to recite the Pledge of Allegiance, Russo v. Central School District, 469 F.2d 623 (2d Cir. 1972), cert. denied, 411 U.S. 932, 93 S.Ct. 1899, 36 L.Ed.2d 391 (1973).
In contrast, the claims of symbolic speech made here are extremely diffuse.5 Through the simple refusal to wear a tie, Mr. Brimley claims that he communicates a comprehensive view of life and society. It may well be, in an age increasingly conscious of fashion, that a significant portion of the population seeks to make a statement of some kind through its clothes. See Q. Bell, On Human Finery (2d ed. 1976). However, I find Mr. Brimley’s message sufficiently vague to place it close to the “conduct” end of the “speech-conduct” continuum described above. Cf. Henkin, The Su*850preme Court 1967 Term — Foreword: On Drawing Lines, 82 Harv.L.Rev. 63, 76-81 (1968). While the regulation of the school board must still pass constitutional muster, the showing required to uphold it is significantly less than if Mr. Brimley had been punished, for example, for publicly speaking out on an issue concerning the quality of the schools. Richards v. Thurston, 424 F.2d 1281 (1st Cir. 1970); see Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).
At the outset, Mr. Brimley had other, more effective means of communicating his social views to his students. He could, for example, simply have told them his views on contemporary America; if he had done this in a temperate way, without interfering with his teaching duties, the school board would be without power to punish him. Presidents Council, supra, 457 F.2d at 293. See Van Alstyne, The Constitutional Rights of Teachers and Professors, 1970 Duke L.J. 841, 856. The existence of alternative, effective means of communication, while not conclusive, is certainly a factor in assessing the validity of a regulation of expressive conduct. Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949); Connecticut State Federation of Teachers v. Board of Education, 538 F.2d 471, 481-82 (2d Cir. 1976).
Against appellant’s claim of free expression is the school board’s interest in promoting respect for authority and traditional values, as well as discipline in the classroom, by requiring teachers to dress in a professional manner.6 The dress code here, while certainly not to everyone’s taste, is a rational means of promoting these goals. As to the legitimacy of the goals themselves, there can be no doubt. As Chief Judge Kaufman stated in James v. Board of Education, 461 F.2d 566 (2d Cir. 1972):
The interest of the state in promoting the efficient operation of its schools extends beyond merely securing an orderly classroom. Although the pros and cons of progressive education are debated heatedly, a principal function of all elementary and secondary education is indoctrinative — whether it be to teach the ABC’s or multiplication tables or to transmit the basic values of the community.
Id. at 573.7 See also Miller v. School District, 495 F.2d 658, 664 (7th Cir.) (Stevens, J.), reh. denied, 500 F.2d 711 (1974) (“desire to encourage respect for tradition” sufficient to uphold a dress code for teachers).
The majority is inconsistent when it credits Mr. Brimley’s notion that tielessness carries a message to his students, but belittles the board’s conclusion that wearing a tie is equally expressive. Professor Cox was far more sympathetic to the board’s point of view. As the majority observes, he noted Mr. Brimley’s sincerity, but further stated:
The School Board feels no less deeply and strongly that the atmosphere of the classroom and attitude of the students are sufficiently affected by teacher’s clothing for it to require a necktie and jacket.
The majority goes to great lengths to argue on policy grounds against the board’s *851decision. Our function as a court is not to endorse the “better” or more “progressive” policy. Rather, as Kelley v. Johnson, 425 U.S. 238, 248, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976), makes clear, we are to assess the regulations and strike down only those which are so “arbitrary as to be branded irrational.” There is a world of difference between “unwise” and “irrational.” My dissent is not based on my belief in the efficacy of ties, but rather on my firm conviction that it is no part of judicial business to express any opinion at all on such questions. The argument made by appellant, and adopted by the majority, was properly addressed to the board, which considered and rejected it. I can see no reason to create a constitutional preference for the decision of an individual teacher in these matters over that of his employers.
III. Academic Freedom in the Public Schools.
In the public high school, as elsewhere, the concept of academic freedom is a meaningful limitation on the power of those in command to stifle dissent and control thought. Eisner v. Stamford Board of Education, 440 F.2d 803 (2d Cir. 1971). At the same time, however, the First Amendment leaves undisturbed the power of local officials to prescribe the curriculum and teaching techniques of the schools in their care.8 Id. See Goldstein, The Asserted Constitutional Right of Public School Teachers to Determine What They Teach, 124 U.Pa.L.Rev. 1293 (1976). Thus, even if I agreed with the majority that a substantial First Amendment interest was involved, I would have difficulty concurring in the remand of this case.9
While teachers do not abandon their First Amendment rights when they accept public employment, exercise of free expression in the schoolroom is necessarily limited to a degree impermissible in public.10 Who could question, for example, that a biology teacher who spent all his time explaining his political views rather than teaching biology could properly be disciplined. The constraints which apply in pure speech cases necessarily apply in symbolic speech cases as well.
The majority furthermore blurs the crucial distinction between secondary and higher education. In the secondary school, the students are a captive audience and the teacher, whom they have not chosen, is far more able to enforce his views upon his class than is a college professor. See Tilton v. Richardson, 403 U.S. 672, 685-86, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971) (plurality opinion). Accordingly, I can see no reason to prefer Mr. Brimley’s attempt to indoctrinate his students with the values implicit in tielessness, if any, rather than the board’s desire to inculcate the values connoted by wearing ties.
*852IV. Appellant’s Status as a Public Employee.
The appellant does not appear as a member of the public at large, but as a governmental employee. As Mr. Justice Marshall stated in Pickering v. Board of Education, supra, 391 U.S. at 568, 88 S.Ct. at 1734:
[I]t cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.
For a proper purpose, the First Amendment rights of public employees may be curtailed to a significant degree. In Civil Service Commission v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973), and Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), the Supreme Court upheld sweeping restrictions on political activity by public servants. If curtailment of activities which lie at the core of the First Amendment is permissible, I am unable to see why this minor infringement of “expression” in a symbolic speech case, if it even amounts to that, violates the Constitution. In any event, due consideration should be given to this doctrine before any court invalidates a rule like the one at issue. Very little, if any, attention is paid to appellant’s employment status in this case; a reader of the majority opinion having been exposed to the question might well conclude that the board was seeking to make everyone in East Hartford wear a tie to work. As the Supreme Court states in Kelley:
Respondent has sought the protection of the Fourteenth Amendment, not as a member of the citizenry at large, but on the contrary as an employee of the police force of Suffolk County, a subdivision of the State of New York. While the Court of Appeals made passing reference to this distinction, it was thereafter apparently ignored. We think, however, it is highly significant.
425 U.S. at 244-45, 96 S.Ct. at 1444. The distinction retains its significance in this case. By ignoring appellant’s status as a public employee, I fear the Court is repeating the error criticized in Kelley.
V. Kelley v. Johnson and the Burden of Proof.
Governments are given wide latitude in the “dispatch of [their] own internal affairs.” Cafeteria Workers v. McElroy, 367 U.S. 886, 896, 81 S.Ct. 1743, 1749, 6 L.Ed.2d 1230 (1961). Accordingly, most legislative decisions are presumed to be valid, Dean v. Gadsden Times Pub. Co., 412 U.S. 543, 93 S.Ct. 2264, 37 L.Ed.2d 137 (1973); Ferguson v. Skrupra, 372 U.S. 726, 730-32, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963); Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423, 72 S.Ct. 405, 96 L.Ed. 469 (1952), and the burden is on the plaintiff to demonstrate that the challenged law is so irrational that it could serve no legitimate state interest. Williamson v. Lee Optical Co., 348 U.S. 483, 487-88, 75 S.Ct. 461, 99 L.Ed.2d 563 (1955); see United Public Workers v. Mitchell, 330 U.S. 75, 100-01, 67 S.Ct. 556, 91 L.Ed. 754 (1947).11
This Court departed from these principles in Dwen v. Barry, 483 F.2d 1126 (2d Cir. 1973), where it was decided that the grooming regulations of the Suffolk County Po*853lice Department intruded upon the “liberty” interests of its employees. Accordingly, the Court reversed the dismissal of the complaint and remanded for a trial in which the Department could attempt to carry “the burden of establishing a genuine public need for the regulation.” Id. at 1131. On remand, the district court found that the burden had not been met, and this Court affirmed. 508 F.2d 836 (2d Cir. 1975).
The Supreme Court reversed sub nom. Kelley v. Johnson, and applied the “rational relation” test to the claim:
Thus the question is not, as the Court of Appeals conceived it to be, whether the State can “establish” a “genuine public need” for the specific regulation. It is whether respondent can demonstrate that there is no rational connection between the regulation, based as it is on the county’s method of organizing its police force, and the promotion of safety of persons and property. United Public Workers v. Mitchell, 330 U.S. 75, 100-101 [67 S.Ct. 556, 569-570, 91 L.Ed. 754, 773-774] (1947); Jacobson v. Massachusetts, 197 U.S. 11, 30-31, 35-37 [25 S.Ct. 358, 363, 365-366, 49 L.Ed. 643, 651-652, 653-654] (1905).
We think the answer here is so clear that the District Court was quite right in the first instance to have dismissed respondent’s complaint. Neither this Court, the Court of Appeals, nor the District Court is in a position to weigh the policy arguments in favor of and against a rule regulating hairstyles as a part of regulations governing a uniformed civilian service. The constitutional issue to be decided by these courts is whether petitioner’s determination that such regulations should be enacted is so irrational that it may be branded “arbitrary,” and therefore a deprivation of respondent’s “liberty” interest in freedom to choose his own hairstyle. Williamson v. Lee Optical Co., 348 U.S. 483, 487-88 [75 S.Ct. 461, 464-465, 99 L.Ed.2d 563, 571-572] (1955).
Kelley v. Johnson, 425 U.S. 238, 247-48, 96 S.Ct. 1440, 1446, 47 L.Ed.2d 708 (1976).12
The majority opinion, ignoring controlling precedent, returns to the discredited reasoning of Dwen v. Barry, and explicitly places the burden of justifying the dress code upon the board. In distinguishing Kelley, the majority relies on the truism that policemen are different from teachers.13 This is a distinction without a difference for constitutional purposes.
Kelley determines that the right of public employees to dress as they please is not “fundamental” in the constitutional sense. Accordingly, the state carries no burden of justification in this case. Rather, the plaintiff must demonstrate that the dress code is so arbitrary that it serves no legitimate interest of the board.
It goes without saying that the result which we might reach for a police department will often differ from that for a school district.14 I would happily join in striking down a requirement that teachers all wear blue uniforms with insignia of rank; I take it that the majority would join me in upholding such a regulation for a police department. However, the fact that the results of two challenges to the same regulation might differ in no way implies that a different constitutional test is called *854for. There is no authority for the position that teachers are entitled to a stricter constitutional test than are other government employees.15 See Garrity v. New Jersey, 385 U.S. 493, 499-500, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967).
VI. The “Liberty” Claim.
The majority also agrees with the appellant that the substantive “liberty” protected by the due process clause is a bar to the imposition of this dress code. I cannot agree with this trivialization of an important and evolving constitutional doctrine.
As the majority concedes, Kelley establishes that if this interest applies at all in the context of a public employee’s personal appearance, it is less weighty than rights associated with “procreation, marriage and family life” which are the values at the core of this “right to be let alone.” Kelley makes it clear that the public employee has no absolute right to appear as he pleases, but must yield to a legitimate governmental interest. Cf. Henkin, Privacy and Autonomy, 74 Colum.L.Rev. 1410, 1429-33 (1974). As with the First Amendment claim, the board’s concern with classroom atmosphere and decorum provides a rational basis for the dress code. Appellant has failed to meet his burden of demonstrating that the rule is arbitrary; accordingly, it should be upheld.
The demands of neither the board nor the appellant are eccentric or extreme. If Mr. Brimley were a nudist insisting on his right to teach without any clothes at all,16 or had the board insisted that its teachers wear an outlandish costume, this would be a different case. However, even in the broad middle ground, the way in which one dresses is subject to significant control. In Miller v. School District, supra, a dress code for teachers was upheld against a similar challenge. Mr. Justice Stevens, then a member of the Court of Appeals, stated:
Even if we assume for purposes of decision that an individual’s interest in selecting his own style of dress or appearance is an interest in liberty, it is nevertheless perfectly clear that every restriction on that interest is not an unconstitutional deprivation.
From the earliest days of organized society, no absolute right to an unfettered choice of appearance has ever been recognized; matters of appearance and dress have always been subjected to control and regulation, sometimes by custom and social pressure, sometimes by legal rules. A variety of reasons justify limitations on this interest. They include a concern for public health or safety, a desire to avoid specific forms of antisocial conduct, and an interest in protecting the beholder from unsightly displays. Nothing more than a desire to encourage respect for tradition, or for those who are moved by traditional ceremonies, may be sufficient in some situations. Indeed, even an interest in teaching respect for *855(though not necessarily agreement with) traditional manners, may lend support to some public grooming requirements. Therefore, just as the individual has an interest in a choice among different styles of appearance and behavior, and a democratic society has an interest in fostering diverse choices, so also does society have a legitimate interest in placing limits on the exercise of that choice.
495 F.2d at 664.
Contrary to the majority’s casual dismissal of the case, Miller is highly apposite here. First, it involved a dismissal rather than, as here, a reprimand. More importantly, it involved both a dress code and a grooming requirement. One who is forced, like the Kelley and Miller plaintiffs, to shave his beard or cut his hair is forced to appear that way off as well as on the job, unless he accepts the inconvenience and additional expense of wearing an artificial beard, moustache or hairpiece. In contrast, Mr. Brimley can remove his tie as soon as the school day is over. Thus, the dress code relates solely to the working day; he may dress as he pleases after hours. See Tardif v. Quinn, 545 F.2d 761, 763 (1st Cir. 1976). Against this minimal intrusion upon appellant’s privacy, if any, is the board’s concern for discipline and authority in the classroom, as well as teaching respect for tradition.17 I am unable to see how, under the test set forth in Kelley, the dress code here is so irrational that the alleged interest in privacy would prevail.
The only other Court of Appeals which has considered this issue has reached a similar conclusion. In the case of a public school teacher dismissed for wearing short skirts, the First Circuit stated:
. [W]e are not dealing with personal appearance in what might be termed an individual sense, but in a bilateral sense — a contractual relationship. Whatever constitutional aspect there may be to one’s choice of apparel generally, it is hardly a matter which falls totally beyond the scope of the demands which an employer, public or private, can legitimately make upon its employees. We are unwilling to think that every dispute on such issues raises questions of constitutional proportions which must stand or fall, depending upon a court’s view of who was right.
Tardif v. Quinn, supra, 545 F.2d at 763 (citations omitted).18
Each claim of substantive liberty must be judged in the light of that case’s special circumstances. In view of the uniquely influential role of the public school teacher in the classroom, the board is justified in imposing this regulation. As public servants in a special position of trust, teachers may properly be subjected to many restrictions in their professional lives which would be invalid if generally applied. See James, supra, 461 F.2d at 573. I would join the sound views of the First and Seventh Circuits, and follow Kelley by holding that a school board may, if it wishes, impose reasonable regulations governing the appearance of the teachers it employs. There being no material factual issue to be decid*856ed, the grant of summary judgment should be affirmed.
Before KAUFMAN, Chief Judge, and SMITH, FEINBERG, MANSFIELD, MULLIGAN, OAKES, TIMBERS, GURFEIN, VAN GRAAFEILAND and MESKILL, Circuit Judges.
. See R. Campbell, L. Cunningham & R.McPhee, The Organization and Control of American Schools 164-70 (1965).
. This final claim does not arise out of the First Amendment, but is merely an assertion that one teaching technique is to be preferred over another. It no more implicates a constitutional interest than would a claim that closer “rapport” could be achieved by arranging students’ desks in a circle rather than in rows.
. Thus, as Professor Kalven noted, “[p]olitical assassination is a gesture of protest, too, but no one is disposed to work up any First Amendment enthusiasm for it.” H. Kalven, The Negro and the First Amendment 133 (1965). And see United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), in which the Supreme Court held that the First Amendment did not invalidate a conviction for burning a draft card to protest the Vietnam War.
. It is significant that the Tinker Court itself was careful to distinguish a prohibition on the wearing of an armband from a dress code:
The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, to hair style, or deportment. * * * Our problem involves direct, primary First Amendment rights akin to “pure speech.”
393 U.S. at 508-09, 89 S.Ct. at 737. At least three Circuits have rejected the claim that long hair is expressive conduct entitled to First Amendment protection. Richards v. Thurston, infra; Freeman v. Flake, 448 F.2d 258 (10th Cir. 1971), cert. denied, 405 U.S. 1032, 92 S.Ct. 1292, 31 L.Ed.2d 489 (1972); Karr v. Schmidt, 460 F.2d 609 (5th Cir.) (en banc), cert. denied, 409 U.S. 989, 93 S.Ct. 307, 34 L.Ed.2d 256 (1972).
. At least one commentator has suggested that conduct which involves no departure from the actor’s normal routine, but is merely a preference of personal appearance, is never symbolic conduct entitled to First Amendment protection. Note, Symbolic Conduct, 68 Colum.L.Rev. 1091, 1117 (1968).
. There is no reason to prefer Mr. Brimley’s notion of what constitutes a “professional image.” In Tardif v. Quinn, 545 F.2d 761 (1st Cir. 1976), from which the majority somehow draws support, changing standards of professional dress were explicitly noted, and yet a dismissal for violation of a dress code was upheld:
The court, having taken a view, found that plaintiffs dresses, which came “half-way down [her] thigh,” were “comparable in style to dresses worn by young, respectable professional women during the years when the plaintiff was teaching.” It further found that her dresses in fact “had no startling or adverse effect on her students or on her effectiveness as a teacher.”
We will assume that by this finding the court meant that plaintiffs dress length was within reasonable limits, and we further assume that this finding was warranted. On the other hand, the court’s independent judgment as to the impact and propriety of plaintiff’s dress does not amount to a finding that defendants’ objections to the length were irrational in the context of school administration concerns.
Id. at 763.
. The inculcation of community values has been a goal of American public education since its very beginning. See The Massachusetts School Laws of 1642 and 1647; Northwest Ordinance, Art. 3 (1787).
. Apparently realizing that the board must have something to control, the majority is willing to allow it to determine matters of “content of curriculum.” They then go on to observe that the function of the secondary school teacher as a role model is in many ways the most significant part of teaching. The paradoxical result of this is that the board is left with control of the less important aspects of education. It seems logical to assume that the importance of the teacher as a role model provides substantial justification for public control of non-curricular matters. See Goldstein, supra, at 1328 n.118.
. One can easily call to mind special situations other than the public schools in which First Amendment rights such as those asserted here may be curtailed. Thus, the New York Court of Appeals has upheld a ban on a lawyer who was also a Catholic Priest from appearing before a jury in clerical garb. LaRocca v. Lane, 37 N.Y.2d 575, 376 N.Y.S.2d 93, 338 N.E.2d 606 (1976) (Breitel, Ch. J.), cert. denied, 424 U.S. 968, 96 S.Ct. 1464, 47 L.Ed.2d 734 (1976). There, constitutionally protected rights were implicated far more sharply than here. However, the legitimate interests of the state in assuring a fair trial outweighed the incidental burden on First Amendment freedom.
. The special needs of the school environment limit the First Amendment rights not only of teachers, but of the general public as well. Thus, ordinarily protected activities, such as picketing and chanting, may constitutionally be prohibited near a school. Grayned v. Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).
. The exceptions to this ordinary test in constitutional litigation remain those of Justice Stone’s celebrated Carolene Products footnote; the state must carry the burden of proof when it discriminates against an insular minority or burdens the exercise of a “fundamental” right. United States v. Carolene Products, 304 U.S. 144, 152 n.4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938); Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312-14, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976); Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); compare id. at 658-63, 89 S.Ct. 1322 (Harlan, J., dissenting); see Gunther, The Supreme Court, 1971 Term — Foreword: In Search of Evolving Doctrine on a Changing Court: A Model For a Newer Equal Protection, 86 Harv.L.Rev. 1 (1972).
. It is significant that the Kelley Court, unlike the majority here, did not remand for a trial. Rather, the fact that the state was able to advance a non-frivolous ground for its rule was sufficient to defeat the claim.
. In Quinn v. Muscare, 425 U.S. 560, 96 S.Ct. 1752, 48 L.Ed.2d 165 (1976), the Supreme Court, in considering the validity of the Chicago Fire Department’s “personal appearance regulation” stated: “Kelley v. Johnson renders immaterial the District Court’s factual determination regarding the safety justification for the Department’s hair regulation about which the Court of Appeals expressed doubt.” Id. at 562, 96 S.Ct. at 1753-1754. Although firemen are, like policemen, a uniformed service, Quinn points toward a general application of Kelley to all public employees.
. It is interesting that in Dwen v. Barry, policemen were carefully distinguished from the military, and classed with civilian employees for the purposes of the case. Here, we are told that the dividing line has moved, and that the “paramilitary” nature of the police distinguishes away Kelley.
. This constitutional error is compounded by the majority’s holding that the plaintiff is entitled to a higher standard of review because he has invoked more than one constitutional provision. See California Bankers Ass’n v. Schultz, 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974) (First, Fourth and Fifth Amendment interests analyzed separately); and see Freeman v. Flake, 448 F.2d 258, 260 (10th Cir. 1971), cert. denied, 405 U.S. 1032, 92 S.Ct. 1292, 31 L.Ed.2d 489 (1972) (First, Fourth, Eighth, Ninth, Tenth and Fourteenth Amendments invoked by plaintiffs challenging dress codes). This novel doctrine, derived in some manner from Police Department of Chicago v. Mosley, 408 U.S. 92, 98-99, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), is unprecedented. Mosley was an application of the familiar principle that a classification that burdens the exercise of a “fundamental” right calls for strict scrutiny for equal protection purposes. I am unable to see how the majority’s new canon of constitutional interpretation can be extracted from the case. To the contrary, the Supreme Court has made it clear that symbolic speech is subject to a lower standard of scrutiny. United States v. O’Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).
Moreover, if we are to have workable rules of constitutional law, the result cannot turn upon the subjective intent of the one engaging in conduct such as this. Karr v. Schmidt, 460 F.2d 609, 614 (5th Cir. 1972) (en banc).
. The example is not so far-fetched as it may appear. See “Teacher Will Appeal Ouster Over Nudity,” New York Times, Friday, Oct. 8, 1976.
. The school board made a good faith effort to limit the reach of the dress code to classes in which the values it promoted were believed to be significant. Thus, Mr. Brimley was required to wear a tie while teaching a conventional English class, but not while giving an “alternative” class in filmmaking. Whatever the merits of this distinction, it demonstrates that the board’s action was not merely an attempt to make teachers conform.
. The First Circuit has also rejected the First Amendment claim made here. That Court has held that a student’s long hair is not sufficiently expressive to justify First Amendment protection, although it is a vague attempt to identify with certain values. Richards v. Thurston, supra.
Miller and Tardif are the only cases of which I am aware in which a Court of Appeals has passed on the question of teacher dress codes. However, the claim that such regulations violate the Constitution has fared equally badly in the state courts. See, e. g., Morrison v. Hamilton County Board of Education, 494 S.W.2d 770 (Tenn.1973), cert. denied, 414 U.S. 1044, 94 S.Ct. 548, 38 L.Ed.2d 335 (1974); Blanchet v. Vermilion Parish School Board, 220 So.2d 534 (La.App.), writ denied, 254 La. 17, 222 So.2d 68 (1969); but see Finot v. Pasadena City Board of Education, 250 Cal.App.2d 189, 58 Cal.Rptr. 520 (1967).