dissenting: I agree with Justice Douglas’ statement that it seems incredible that a school board can deny a student an *572education in its public school system unless his hair style conforms with the standards of the school board. (Olff v. East Side Union High School District, 404 U. S. 1042, 30 L. Ed. 2d 736, 92 S. Ct. 703.) Hair styles change. A high school boy if he chooses should be able to wear his hah as Yul Brynner does or as Joe Namath does without fear of being deprived of an education by school administrators and school board members who grew up at a time the crew-cut was fashionable. To me the right to wear one’s hair as one pleases, although unspecified in our Bill of Rights, is a fundamental right inherent in the concept of individual liberty. It finds its origin in that great reservón- of personal rights recognized by the Ninth Amendment to the Constitution of the United States and protected from arbitrary state action by the Due Process Clause of the 14th Amendment. I think it obvious that one’s hair style, like one’s taste for food, or one’s liking for certain kinds of music, art, reading or recreation, is fundamental in our constitutional scheme — a scheme designed to keep government off the backs of people. Judge Wisdom stresses the importance of the right to wear one’s hair as one pleases in his dissenting opinion in Karr v. Schmidt, 460 F. 2d 609, in the following language:
“. . . Hair is a purely personal matter — a matter of personal style which for centuries has been one aspect of the manner in which we hold ourselves out to the rest of the world. Like other elements of costume, hair is a symbol: of elegance, of efficiency, of affinity and association, of non-conformity and rejection of traditional values. A person shorn of the freedom to vary the length and style of his hair is forced against his will to hold himself out symbolically as a person holding ideas contrary, perhaps, to ideas he holds most dear. Forced dress, including forced hair style, humiliates the unwilling complier, forces him to submerge his individuality in the ‘undistracting’ mass, and in general, smacks of the exaltation of organization over member, unit over component, and state over individual. I always thought this country does not condone such repression.” (p. 621.)
The well-written opinion of Mr. Justice Fromme points out the wide disagreement among the various federal and state courts throughout this country. I recognize that the result reached by the majority here finds support in many cases. It can not be denied, however, that an equal number of courts to the contrary hold in favor of the long-haired student and against the school board.
The majority opinion recognizes that a person in this country has a right to goven his own personal appearance, including the length of his hair, without unreasonable interference by the state. Certainly a state by statute or a city by ordinance could not con*573stitutionally interfere with personal liberty by prescribing a certain hair length for all citizens. Neither the constitution nor the people would tolerate such an invasion of personal liberty. The problem presented in this case is whether or not a different rule can or should be applied to our young people when attending the public schools of this state.
In Tinker v. Des Moines School Dist., 393 U. S. 503, 21 L. Ed. 2d 731, 89 S. Ct. 733, the Supreme Court of the United States held that state-operated schools may not be enclaves of totalitarianism, and school officials do not possess absolute authority over their students. The court further held that students in state-operated schools, as well as out of school, are “persons” under the Federal Constitution, and are possessed of fundamental rights which the state must respect, just as they themselves must respect their obligations to the state. The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. In the Tinker opinion it is, of course, recognized that conduct by a student, in class or out of it, which for any reason materially disrupts classwork or involves substantial disorder or invasion of the rights of others, is not immunized by the constitution.
I recognize that the responsibility for maintaining proper standards for learning and discipline, and for creating a wholesome academic environment in our public schools is vested in the local board of education, consistent with fundamental constitutional safeguards. I agree with the majority opinion where it states that a school regulation must not be oppressive or unreasonable; a regulation to be reasonable must be a proper one to further the educational processes in the school, and the means adopted must be appropriate to accomplish the educational mission.
The fundamental issue presented in this case is whether or not the dress code regulation pertaining to the length of a male student’s hair in the Haysville Campus High School is a reasonable school regulation in view of the fact that the restriction of the length of one’s hair is an invasion of personal liberty as discussed heretofore. It seems reasonable to place the burden upon the school board to show some compelling reason justifying the regulation. This burden has been recognized in the past in the decisions of this court.
Back in 1881 in Board of Education v. Tinnon, 26 Kan. 1, a school board sought to establish separate schools for the education of white and black children and to exclude the black children from *574the white schools. In holding that the board of education had no such authority the court pointed out the importance of proper education to our young people and the importance of nonconformity in our school system by stating as follows:
“The tendency of the present age is not to make any distinctions with regard to school children, except to classify them with reference to their studies and place them in the classes in which they properly belong. All kinds of children are usually allowed to go to the same schools, and all kinds of children are usually placed in the same classes.
Is it not better for the grand aggregate of human society, as well as for individuals, that all children should mingle together and learn to know each other? At the common schools, where both sexes and all kinds of children mingle together, we have the great world in miniature; there they may learn human nature in all its phases, with all its emotions, passions and feelings, its loves and hates, its hopes and fears, its impulses and sensibilities; there they may learn the secret springs of human actions, and the attractions and repulsions, which lead with irresistible force to particular lines of conduct. But on the other hand, persons by isolation may become strangers even in their own country; and by being strangers, will be of but little benefit either to themselves or to society. As a rule, people cannot afford to be ignorant of the society which surrounds them; and as all lands of people must live together in the same society, it would seem to be better that all should be taught in the same schools.” (p. 19.)
Although that case involved separation of the races the reasons stated logically apply to a separation of our children because of their different ideas or because of the different lengths of their hair. I have never heard it suggested that one of the purposes of public education is to achieve conformity in our young people.
In Nutt v. Board of Education, 128 Kan. 507, 278 Pac. 1065, a school board sought to refuse to permit a young girl to attend high school because she was a married woman and had purportedly conceived a child out of wedlock. This court in Nutt recognized a constitutional and statutory right of every child in this state to attend our public schools. It noted, however, that this right is subject always to reasonable regulations, and a child who is of a licentious or immoral character may be refused admission. It is further pointed out that school authorities may exclude from association with the school anyone who may be or becomes undesirable from either physical malady or moral unfitness. It was held that the young girl should have been permitted to attend high school emphasizing the burden placed upon the school board to justify expulsion of a student. In Nutt we said:
*575“The public schools are for the benefit of children within school age, and efficiency ought to be the sole object of those charged with the power and privilege of managing and conducting the same, and while great care should be taken to preserve order and proper discipline, it is proper also to see that no one within school age should be denied the privilege of attending school unless it is clear that the public interest demands the expulsion of such pupil or a denial of his right to attend.” (p. 509.)
The thrust of those decisions is that the children of this state are entitled to attend the public schools unless the state acting through the school board shows that some public interest demands his expulsion or a denial of his right to attend. I respectfully submit that the expulsion of the three boys in the case at bar is not justified under the record presented in this case. The only claimed justification for the school regulation limiting the length of a male student’s hair is that extreme hair styles distract other students thereby disrupting class and interfering with the educational process. The majority opinion correctly expresses some doubt as to whether problems of behavior and discipline necessitate the dress code or whether the enforced dress code merely contributes to the problems of behavior and discipline.
The testimony of the various witnesses on behalf of the school administration does not set forth a single occasion where the length of a student’s hair caused a disruption or distraction, with one possible exception. A distraction may have been brought about by one instructor, T. W. Mauck, who noting the length of hair on young Blaine joked about being unable to tell the boys from the girls these days. Young Blaine took the comment personally and requested a transfer from the class. Mr. Mauck testified that extreme hair styles are really very amusing but admitted they did not bother him very much and that hair style didn’t make a lot of difference to his teaching. He objected to long hair because it was symbolic of the anti-establishment. James Flummerfelt, a teacher in the metal shop, testified that it would be a lot nicer if the boys working with machinery had shorter hair but that he had never had any accidents involving students because of long hair. His testimony was that headbands of some type adequately solved the problem of safety in his department.
Don Layton, the principal of Haysville Campus High School objected to long hair for the reason that extreme hair styles have “potentially the ability to disrupt education within the school.” (Emphasis supplied.) He felt that long hair hurts student pride *576and also that the failure to control something in school results in a loss of pride. He could not pinpoint any actual misconduct associated with those students with long hair. Mr. Layton did give as examples of disruption two articles written by students in the school newspaper objecting to the hair code. These two articles, one of which was an editorial and one of which a letter from a girl student, simply urged the students to speak out and express their opinions about the dress code. It is inconceivable that a high school principal would object to an expression of opinion by students on a subject which caused them concern. This is especially true today where our 18-year-old young people are qualified to vote and a number of high school students are of voting age. Perhaps they should be encouraged to use their minds and express their opinions. Mr. Layton further testified that if the school board had picked shoulder length hair that would have been the dress code and that would have been all right in his opinion.
Dr. W. H. Phillips, the superintendent of schools, frankly stated that it would be rather difficult for him to say that the hair code was reasonably related to conduct of the educational system. His rationale for supporting the hair code is essentially this: It is unusual for boys to have long hair; therefore it causes some distraction. This distraction may cause disturbance of the educational process.
It is, of course, impossible to remove from a high school atmosphere the things which normally distract young people. A pretty girl may be extremely distracting to many of our high school boys; yet we would not consider expelling her from school to avoid a distraction. There is nothing disturbing in long-hair per se. If the long-haired student himself causes a disturbance he may be handled with appropriate disciplinary action. If other students cause disturbances because of their prejudices against long hair on male students, then it seems to me the school system should take steps to adopt a program to encourage tolerance of individual differences. I question whether our schools can become “the world in miniature” by a rule excluding students who are different and nonconforming. I would hold the hair provision of the dress code to be an unconstitutional invasion of the appellants’ personal liberty and would order their reinstatement in school.
I respectfully dissent from the decision of the majority.
Schkoeder, J., joins in the foregoing dissent.