Olff v. East Side Union High School District/Opinion of the Court

It seems incredible that under our federalism a State can deny a student education in its public school system unless his hair style comports with the standards of the school board.

Some institutions in Asia require their enrollees to shave their heads. Would we sustain that regulation if imposed by a public school?

Would we sustain a public school regulation requiring male students to have crew cuts?

The present regulation-to some at least-seems as extreme as the examples given. It provides:

'Hair shall be trim and clean. A boy's hair shall not fall     below the eyes in front and shall not cover the ears, and it      shall not extend below the collar in back.'

Robert Olff, a 15-year-old boy speaking through his mother, has a full panoply of constitutional rights, though he is a minor. We said in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 511, 89 S.Ct. 733, 739, 21 L.Ed.2d 731:

'Students in school as well as out of school are 'persons'     under our Constitution. They are possessed of fundamental     rights which the State must respect, just as they themselves      must respect their obligations to the State.'

Moreover, a parent's control over the child, though not absolute as witness our decisions placing sanctions against child labor, is pervasive. We said in Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645:

'It is cardinal with us that the custody, care and nurture of     the child reside first in the parents, whose primary function and freedom include preparation for      obligations the state can neither supply nor hinder. . . .     And it is in recognition of this that these decisions have      respected the private realm of family life which the state      cannot enter.'

Hair style is highly personal, an idiosyncracy which I had assumed was left to family or individual control and was of no legitimate concern to the State. It seems to me to be as much a purely private choice as was the family-student decision, sustained against a State's prohibition, to study the German language in a public school. Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042. That family-student right, the Court held, was included within 'liberty' as the word is used in the Fourteenth Amendment. Id., at 400, 43 S.Ct., at 627. Opposed there as in the present case-is the authoritarian philosophy favoring regimentation. The Court said:

'In order to submerge the individual and develop ideal     citizens, Sparta assembled the males at seven into barracks      and intrusted their subsequent education and training to      official guardians. Although such measures have been     deliberately approved by men of great genius, their ideas      touching the relation between individual and State were wholly different from      those upon which our institutions rest; and it hardly will be      affirmed that any legislature could impose such restrictions      upon the people of a State without doing violence to both      letter and spirit of the Constitution.' Id., at 402, 43      S.Ct., at 627.

The word 'liberty' is not defined in the Constitution. But as we held in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, it includes at least the fundamental rights 'retained by the people' under the Ninth Amendment. Id., at 484, 85 S.Ct., at 1681. One's hair style, like one's taste for food, or one's liking for certain kinds of music, art, reading, recreation, is certainly fundamental in our constitutional scheme-a scheme designed to keep government off the backs of people. That is not to say that the police power of the state is powerless to deal with known evils. An epidemic of lice might conceivably authorize a shearing of locks. Other like crises might be imagined. But I see no way of allowing a State to set hair styles for patrons of its schools, any more than it could establish a welfare system only for men with crew cuts and women with bobbed hair. Once these lines are drawn, a serious question of equal protection of the law is raised.

The federal courts are in conflict and the decisions in disarray. We have denied certiorari where the lower court has sustained the school board and also where it has overruled them. The question tendered is of great personal concern to many and of unusual constitutional importance which we should resolve. I would grant this petition and set the case for argument.