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January 10, 1973


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.

Applicable Law

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
  the better.

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.

Findings of Fact

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:

"Unacceptable for Boys:

  3.  Hair or sideburns worn below the ear or
      touching the shirt collar on the back,
      beards, or mustaches. Also, hair is not to
      exceed eyebrows."

Shortly after the commencement of classes, plaintiffs Larry Copeland, Patrick Copeland, Robert Needling and James Jenkins were suspended from Shawnee for being in violation of this rule. On September 25, 1972, a hearing was held regarding these suspensions, and the School Board subsequently expelled these plaintiffs from school for being in violation of the hair code. Plaintiffs Wesley Schultz and Roger Clarke were also suspended, but their suspensions have been vacated by the School Board.

Proffered Justifications

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, ...

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