The opinion of the court was delivered by: Foreman, District Judge:
This action is brought pursuant to 42 U.S.C. § 1983 by minor
male high school students who have been expelled or suspended
from school, concededly because their hair length violated the
high school's dress code. The defendants are the Board of
Education of School District No. 84 in Union County, Illinois;
the Superintendent of the district; and the Principal of the
Shawnee Junior-Senior High School, located in Wolf Lake,
Illinois. The plaintiffs seek a declaratory judgment that the
Shawnee High School hair regulation is unconstitutional, a
permanent injunction against its enforcement, and an order
expunging from the high school's records any mention of the
disciplinary actions taken against plaintiffs under the hair
code. Pending this Court's disposition of the case on the
merits, the parties have agreed to an order permitting
plaintiff students to remain in school. The case was tried
before the Court on December 14, 1972, at Benton, Illinois.
In an earlier case involving a high school hair regulation,
the United States Court of Appeals for the Seventh Circuit
stated: "The right to wear one's hair at any length or in any
manner is an ingredient of personal freedom protected by the
United States Constitution." Breen v. Kahl, 419 F.2d 1034,
1036 (7th Cir., 1969).
This right arises from the First Amendment and the Ninth
Amendment, and is made applicable to the states via the due
process clause of the Fourteenth Amendment. While the Federal
Circuits are divided as to the constitutionality of school
hair codes, the Seventh Circuit has spoken repeatedly and
forcefully on the issue. See Crews v. Cloncs, 432 F.2d 1259
(7th Cir., 1970); Arnold v. Carpenter, 459 F.2d 939 (7th Cir.,
1972). This Court is not without considerable sympathy for the
opinion expressed in Stevenson v. Wheeler County Board of
Education, 306 F. Supp. 97, 101 (S.D.Ga., 1969):
Those who run public schools should be the judges
of such matters, not the courts. The quicker
judges get out of the business of running schools
However, the issue is not one of first impression. In this
Circuit the burden is now on the school board to establish
substantial burden of justification for the hair code as
applied to male students. The above-cited cases have examined
several proffered justifications; the results have come very
close to establishing a rule of law that public high school
hair codes are per se unconstitutional.
Shawnee High School is a public high school organized under
the laws of the State of Illinois. Prior to the present
academic year the school had no formal hair or dress code.
Sometime prior to August 23, 1972, the Board of Education
directed the Principal, James B. Goggin, to formulate a
student dress code. This was done, and on August 23, Mr.
Goggin explained the existence of the code to the student body
at an assembly. The code, as amended in October, 1972,
contains the following provision:
3. Hair or sideburns worn below the ear or
touching the shirt collar on the back,
beards, or mustaches. Also, hair is not to
Defendants offered several reasons for the hair code.
Apparently at Shawnee the Junior and Senior High students are
together for much of the school day. Several witnesses,
including Dr. Altekruse, an expert on Guidance and Educational
Psychology, testified that such a situation was not desirable.
The fear was expressed that added pressure is placed on the
impressionable Junior High students to emulate the older
students. If high school students were permitted to grow long
hair and beards, ...