John E. Zeller v. Donegal School District Board of Education

517 F.2d 600

• Court: Court of Appeals for the Third Circuit
• Decided: January 8, 1975
• Docket: 72-1009
• Status: Published

Opinions

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The question is whether a schoolboy’s complaint for money damages, filed after his exclusion from a soccer team for noncompliance with an athletic code regulating hair, states a claim for which relief can be granted under the Civil Rights Act, 42 U.S.C. § 1983.

Defendants are the Donegal School District, its president and chief executive officer, its superintendent of schools, the principal of Donegal High School, the school’s athletic director and the coach of the soccer team. Plaintiffs contend that the code, which defendants promulgated, trenches upon rights guaranteed to Brent Zeller by the Constitution. Accordingly, plaintiffs seek damages on behalf of their son.¹

Appellants have summarized the proceedings in the district court: “[A] hearing was held ... on plaintiff’s [sic] request for preliminary injunctive relief. At the commencement of this hearing defendants moved to dismiss the complaint for failure to state a claim, and decision was reserved on this motion. The Court then heard extensive testimony offered by both sides as well as receiving a stipulation of agreed upon facts that had been entered into by the parties for purpose of the hearing. Thereafter . . . the Court entered an order granting defendants’ motion to dismiss without making any finding of facts on the basis of ‘the lack of a substantial federal question in Donegal School District’s refusal to allow plaintiff to participate in soccer’.” Appellants’ Brief at 5. We affirm.

The protracted history of this appeal discloses that the members of this court have agonized over the troublesome issues presented. A panel first pondered the matter in July, 1973, and affirmed the judgment. No. 72-1009 (3d Cir., July 25, 1973). Upon presentation of a petition, that judgment was vacated and panel reconsideration ordered for October, 1973. However, deliberation was suspended when another case, posing a kindred issue and promising to give guidance, was set for in banc determination. Unfortunately, that case became moot. Comunale v. Mier, 505 F.2d 729 (3d Cir. 1974). Subsequently and on recommendation of the panel, a majority of the full court ordered in banc consideration of this case.

What divides this court today is not so much a disagreement as to abstract nuances of constitutional law as it is a difference in policy — how broadly the Constitution should be interpreted to provide actionable relief when asserted individual student rights collide with regulations of a school system.

We recognize that a strong case — indeed, one philosophically and academically sound — may be made for the point of view that, if a complaint is couched in the proper language asserting a constitutional deprivation, federal courts should provide the judicial forum in school hair cases. In addition to this court’s previous decisions in Gere v. Stanley, 453 F.2d 205 (3d Cir. 1971), and Stull v. School Board, 459 F.2d 339 (3d Cir. 1972), the First,² Second,³ Fourth,⁴ Seventh,⁵ and Eighth⁶ Circuits have been hospitable to such claims. The District of Columbia,⁷ Fifth,⁸ Sixth,⁹ Ninth,¹⁰ and Tenth¹¹ Circuits, on the other hand, have not been receptive to claims that tonsorial tastes are subsumed in substantial rights protected by the federal Constitution and, therefore, warrant federal court consideration.¹² On nine occasions now, the Supreme Court has denied certiorari to .hair cases,¹³ and on three of these, strong dissents have been filed.¹⁴

The starting point for our approach is that federal courts have jurisdiction to entertain complaints brought under 42 U.S.C. § 1983 ¹⁵ because of its jurisdictional counterpart, 28 U.S.C. § 1343(3).¹⁶ Gere v. Stanley, supra, 453 . We recognize that the current § 1983 was part of the Civil Rights Act of 1871, passed by the Reconstruction Congress to effectuate the Fourteenth Amendment which, in turn, was adopted to guarantee recently emancipated blacks constitutional protections. See Hague v. C.I.O., 307 U.S. 496, 510, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). In the three-quarters of a century after its enactment, only a smattering of decisions invoked § 1983. Cf. Monroe v. Pape, 365 U.S. 167, 214 n.21, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) (Frankfurter, J., dissenting) (collecting cases). In 1960, 280 civil rights cases were filed.¹⁷ Then came the landmark case of Monroe v. Pape, supra, which judicially expanded available federal relief under the Act of 1871. From that day in February 1961 forward, the federal judiciary at all levels — district court, court of appeals and Supreme Court — has added new strength and increased vigor to the Act in the form of thousands of judicial decisions.¹⁸

The Director of the Administrative Office of the United States Courts has reported that 12,530 of 75,945 private civil actions filed in the United States District Courts during 1974 were civil rights actions; in the district courts of this circuit, 886 of 7,359 filings involved civil rights.¹⁹ It therefore becomes apparent that a sizeable percentage of the constitutional questions presented to our federal courts are grounded in allegations of constitutional deprivation under color of state law, all of which tends to prove the incisive observation of Karl N. Llewellyn: “[T]he focus of study, the point of reference for all things legal has been shifting, and should now be consciously shifted to the area of contact, of interaction, between official regulatory behavior and the behavior of those affecting or affected by official regulatory behavior . . .."²⁰

The sheer number of § 1983 suits, of its own momentum, has spawned a host of new interpretations of rights assured by the Fourteenth Amendment. That these dimensions to constitutional protections were unrecognized and undefined a few short years ago is among the meekest of understatements. Claims for relief which heretofore had taken the form of traditional tort, property and contract substantive law in the state courts are now being couched in terms of constitutional deprivation and presented to federal forums.²¹ One of the realities of this innovativeness is that the federal decisions are being made, not on the basis of visible, time-tested rules or principles of substantive law, but on the basis of jural impressionism — subjective judgments of individual judges as to what constitutes protectable “liberty” or a denial of due process or equal protection.

Admittedly, the very nature of constitutional interpretation calls more for the making of value judgments than for the application of specific rules, principles, conceptions, doctrines or standards.²² As Learned Hand said in describ-

ing the broad clauses of the Constitution, “these fundamental canons are not jural concepts at all, in the ordinary sense; and in application they turn out to be no more than admonitions of moderation, as appears from the varying and contradictory interpretations that the judges themselves find it necessary to put upon them.”²³ But this does not mean that a constitutional interpretation need not be “entirely principled.” As Professor Wechsler emphasized: “A principled decision ... is one that rests on reasons with respect to all the issues in the case, reasons that in their generality and their neutrality transcend any immediate result that is involved. When no sufficient reasons of this kind can be assigned for overturning value choices of the other branches of the Government or of a state, those choices, must, of course, survive. Otherwise, as Holmes said in his first opinion for the Court, ‘a constitution, instead of embodying only relatively fundamental rules of right, as generally understood by all English-speaking communities, would become the partisan of a particular set of ethical or economical opinions . . .” ²⁴

We construe the Constitution as containing “fundamental rules of right” and we recognize that the concept of liberty may embrace certain personal and individual rights vaguely described as coming “within the protected penumbra of specific guarantees of the Bill of Rights”. Griswold v. Connecticut, 381 U.S. 479, 487, 85 S.Ct. 1678, 1683, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring). But our interpretative analysis may not stop there. We agree with Dean Griswold that “[i]t is not . a question of strict construction or of activism. It is both. Construction is strict only to those who agree with the interpretation; to those who do not, it is simply wrong. Activism that carries us beyond the proper exercise of the judicial function is not legitimately called activism. The limits either way cannot be demonstrated. But there are limits. That is inherent in the idea of the judicial process. The supreme function of the judge is to recognize that there must be limits, both ways, avoiding undue literalism on the one hand, and too wide freedom of action on the other.”²⁵ Accordingly, we have reexamined the premises underlying the rule of Stull v. School Board, supra²⁶

We are no longer convinced that reasons previously assigned in support of the school hair cases are persuasive; we are no longer satisfied that the reasons “in their generality and their neutrality transcend any immediate result” so as to justify overturning the value judgment of the school district.²⁷ We hold that plaintiffs’ contention does not rise to the dignity of a protectable constitutional right. In the language of Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968), the contention is one “not directly and sharply implicat[ing] basic constitutional values.” Moreover, it is not one asserting denial of procedural due process in the context of suspension or expulsion. See Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). Thus, the claim presented here is not one for which relief can be granted.

In making our carefully considered value judgment that recognizes limits to redressable allegations of .constitutionally-protected personal liberty by public school students, we are persuaded that we cannot arrogate to the federal courts the interpretation of the “conflicting ideals”²⁸ of student liberty and school regulation in the context of students’ hair. The very nature of the school system, public and private, requires that student liberties and freedom may not be absolute. The faculty must prescribe curriculum; the administration must assign faculty, promulgate rules for the conducting of courses and extracurricular activities, and set standards for grading, promoting and graduating. As the Supreme Court²⁹ said recently in reversing the Eighth Circuit’s finding of a substantive due process violation in a related school rights context:

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. Public high school students do have substantive and procedural rights while at school. See Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); Goss v. Lopez, supra. But § 1983 does not extend the right to relitigate in federal court evidentiary questions arising in school disciplinary proceedings or the proper construction of school regulations. 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 correction of errors in the exercise of that discretion which do not rise to the level of violations of specific constitutional guarantees. See Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968); Tinker, supra, 393 U.S. at 507, 89 S.Ct. 733.

Wood v. Strickland, 420 U.S. 308, 326, 95 S.Ct. 992, 1003, 43 L.Ed.2d 214 (1975) (emphasis added).

Thus, notwithstanding our prior statements in this area, we determine today that the federal court system is ill-equipped to make value judgments on hair lengths in terms of the Constitution — whether an athletic code requiring that hair be “neatly trimmed” would not pass muster, whether one putting the limit on hair twelve inches below the collar would pass, or whether one drawing the line at four inches below the collar would be more difficult of solution. A very real concern is that the decisional process not become, in the phrase of Justice Hopkins, “amorphous and growing out of a shifting foundation laid on morals or community welfare” so as to invite “indiscriminate use by the courts in the name of either expediency or a private view of morality — both of which take on color and shade from the eye of the beholder.”³⁰

In summary, there are areas of state school regulation in which the federal courts should not intrude. Without attempting to survey a bright line between permissible and impermissible intervention, we conclude that student hair cases fall on the side where the wisdom and experience of school authorities must be deemed superior and preferable to the federal judiciary’s. We decline to cast our conclusion in the form of a neat, stylized label — to pitch our decision into the jurisprudential pigeonhole of abstention. We merely hold, as a matter of policy and in the absence of “general” and “transcending” reasons to the contrary, that the asserted claim is not one for which relief can be granted in a federal forum.

Having made a policy determination, it is important to underscore why we have drawn the line we have. In full recognition of the duty of federal courts to be hospitable to claims for redress of constitutional infringements, we have ruled deliberately. We have acted because of a felt concern that the sturdy tree of the federal judiciary is in need of pruning if it is to remain strong and stand tall, protecting basic individual liberties against unconstitutional impingements. We are concerned that, if the trimming process does not begin somewhere, the tree may topple of its own weight; that the proliferation of claims with exotic concepts of real or imagined constitutional deprivations³¹ may very well dilute protections now assured basic rights. We have a genuine fear of “trivialization” of the Constitution. If this should occur, some of the monumental accomplishments in defining fundamental human rights and liberties may be compromised, and the protections accorded those rights and liberties threatened.

“We must never forget,” in Justice Marshall’s powerful phrase, “that it is a constitution we are expounding.”³² If it is to be a document not stating “rules for the passing hour, but principles for an expanding future,”³³ we must not permit it to be seized upon in wholesale fashion, recklessly or indiscriminately. Otherwise, in every case where the defendant has acted under color of state law, the visible rules and principles of traditional disciplines of state law may be discarded for comparatively imprecise, newly-formed dimensions of the Fourteenth Amendment’s “due process” and “liberty” concepts. Predictability and reckonability of societal regulations will lessen, and order and regularity of the law will suffer.³⁴

Our decision offends no specific mandate of Congress and runs counter to no precise holding of the Supreme Court. Support for our view, as well as for the opposing view, may be found in an equal number of our sister Courts of Appeals. See nn.2-11, supra.

Thus, we find both jurisprudential and prudential support to draw the line and set the limits we do today. We believe that the facts of this case dictate the application of the principle enunciated in Epperson v. Arkansas:

Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. ... By and large, public education in our Nation is committed to the control of state and local authorities. Courts 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 basic constitutional values.

393 U.S. at 104, 89 S.Ct. at 270 (footnote omitted). In so concluding, we derive support from the Supreme Court’s recent explicit reaffirmation of this basic Epperson tenet, Goss v. Lopez, supra, 419 U.S. at 578, 95 S.Ct. 729, and from the even stronger supportive statement in Wood v. Strickland,’ supra, at p. 606. Accordingly, we now align ourselves with the view expressed by Judge Breitenstein in Freeman v. Flake, 448 F.2d 258, 262 (10th Cir. 1971), cert. denied, 405 U.S. 1032, 92 S.Ct. 1292, 31 L.Ed.2d 489 (1972):

Whether the allegations of a complaint state a claim for relief is a question of law. Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939. Complaints which are based on nothing more than school regulations of the length of a male student’s hair do not “directly and sharply implicate basic constitutional values” and are not cognizable in federal courts under the principles stated in Epperson v. Arkansas.

Although the foregoing reflects the views of only four judges of this court, when considered with Judge Rosenn’s view which would require only “a rational basis, for a hair regulation”, the effect of today’s decision is to overrule Stull v. School Board, supra, that held school officials must demonstrate “an outweighing state interest.” 459 F.2d at 338.

The judgment of the district court will be affirmed.

1 . Coupled to the original complaint was a prayer for injunctive relief. Upon young Zeller’s graduation from high school, however, the request for equitable relief became moot, and the appellants so concede. See Board of School Commissioners v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975).

2 . Richards v. Thurston, 424 F.2d 1281, 1284 (1st Cir. 1970) (emanating from sphere of liberty inherent in due process clause); see Friedman v. Froehlke, 470 F.2d 1351, 1353 (1st Cir. 1972) (National Guard reservists’ wigs).

3 . See Dwen v. Barry, 483 F.2d 1126, 1130 (2d Cir. 1973) (“While it has been argued that hair length controversies are much ado about nothing, we think there is a substantial constitutional issue raised by regulation of the plaintiff’s [policeman’s] hair length.”).

4 . Massie v. Henry, 455 F.2d 779, 783 (4th Cir. 1972) (“[W]e prefer ... to treat [the] right to wear their hair as they wish as an aspect of the right to be secure in one’s person guaranteed by the due process clause . but having overlapping equal protection clause considerations . ..”). But cf. ibid, at 784-85 (Boreman, J., dissenting) (“[M]y conclusion [is] that the matter is simply not a proper one for litigation in the federal courts.”).

5 . Holsapple v. Woods, 500 F.2d 49, 51-52 (7th Cir.) (per curiam), cert. denied, 419 U.S. 901, 95 S.Ct. 185, 42 L.Ed.2d 147 (1974) (“The law of this Circuit is well settled that in a school context, the right to wear one’s hair at any length or in any desired manner is an ingredient of personal freedom protected by the United States Constitution.”); Arnold v. Carpenter, 459 F.2d 939 (7th Cir. 1972); Crews v. Clones, 432 F.2d 1259 (7th Cir. 1970); Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969) (divided panel), cert. denied, 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268 (1970). But cf. Miller v. School Dist. No. 167, 495 F.2d 658, 664 (7th Cir. 1974) (teacher with beard and sideburns) (“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 ..”). See also ibid, at 665-66. Notwithstanding the latter language, the circuit has since stated in Hoisappie: “Our decision in Miller did not dislodge our former holdings in Breen, Crews, and Arnold . . ..” 500 F.2d at 52 n.2.

6 . Bishop v. Colaw, 450 F.2d 1069, 1075 (8th Cir. 1971) (“[T]he Constitution guarantees rights other than those specifically enumerated, and . . . the right to govern one’s personal appearance is one of those guaranteed rights.”); see Miller v. Ackerman, 488 F.2d 920, 922 (8th Cir. 1973) (per curiam) (Marine wigs). But see Rinehart v. Brewer, 491 F.2d 705 (8th Cir. 1974) (per curiam) (prison hair regulations upheld); Stradley v. Anderson, 478 F.2d 188, 190-91 (8th Cir. 1973) (police hair regulation upheld).

7 . See Fagan v. National Cash Register Co., 157 U.S.App.D.C. 15, 481 F.2d 1115, 1119 (1973) (hair length as sex discrimination) (“We may fairly assume . . . the Supreme Court sees no federal question in this area.”).

8 . E. g., Karr v. Schmidt, 460 F.2d 609, 611 (5th Cir.) (sharply divided court in banc), cert. denied, 409 U.S. 989, 93 S.Ct. 307, 34 L.Ed.2d 256 (1972) (“Believing, as did Mr. Justice Black, that appellee Karr’s asserted right to be free of school regulations governing the length of his hair is one that is not cognizable in federal courts, we reverse with direction that the case be dismissed for failure to state a claim for which relief can be granted.”).

9 . Gfell v. Rickelman, 441 F.2d 444 (6th Cir. 1971); Jackson v. Dorrier, 424 F.2d 213 (6th Cir.) (per curiam), cert. denied, 400 U.S. 850, 91 S.Ct. 55, 27 L.Ed.2d 88 (1970).

10 . King v. Saddleback Jr. College Dist., 445 F.2d 932, 940 (9th Cir.), cert. denied, 404 U.S. 979, 92 S.Ct. 342, 30 L.Ed.2d 294 (1971) & sub nom. Olff v. East Side Union High School Dist., 404 U.S. 1042, 92 S.Ct. 703, 30 L.Ed.2d 736 (1972) (“We do not believe that the plaintiffs have established the existence of any substantial constitutional right which is in these two instances being infringed. ... A court might disagree with [the school authorities’] professional judgment, but it should not take over the operation of their schools.”).

11 . Hatch v. Goerke, 502 F.2d 1189, 1192 (10th Cir. 1974); Freeman v. Flake, 448 F.2d 258, 262 (10th Cir. 1971), cert. denied, 405 U.S. 1032, 92 S.Ct. 1292, 31 L.Ed.2d 489 (1972) (“Complaints which are based on nothing more than school regulations of the length of a male student’s hair do not ‘directly and sharply implicate basic constitutional values’ and are not cognizable in federal courts . ..”).

12 . See generally Goldstein, Reflections on Developing Trends in the Law of Student Rights, 118 U.Pa.L.Rev. 612 (1970); Goldstein, The Scope and Sources of School Board Authority to Regulate Student Conduct and Status: A Nonconstitutional Analysis, 117 U.Pa.L.Rev. 373, 399-401, 420-22 (1969); Gyory, The Constitutional Rights of Public School Pupils, 40 Fordham L.Rev. 201, 244-46, 249-51 (1971); Note, A Dilemma in Public High Schools: School Board Authority v. The Constitutional Right of Students to Wear Long Hair, 33 La.L. Rev. 697 (1973); 84 Harv.L.Rev. 1702 (1971).

13 . Holsapple v. Woods, 500 F.2d 49 (7th Cir.), cert. denied, 419 U.S. 901, 95 S.Ct. 185, 42 L.Ed.2d 147 (1974); Karr v. Schmidt, 460 F.2d 609 (5th Cir.) (in banc), cert. denied, 409 U.S. 989, 93 S.Ct. 307, 34 L.Ed.2d 256 (1972); 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); King v. Saddleback Jr. College Dist., 445 F.2d 932 (9th Cir.), cert. denied, 404 U.S. 979, 92 S.Ct. 342, 30 L.Ed.2d 294 (1971) & sub nom. Olff v. East Side Union High School Dist., 404 U.S. 1042, 92 S.Ct. 703, 30 L.Ed.2d 736 (1972); Stevenson v. Board of Educ., 426 F.2d 1154 (5th Cir.), cert. denied, 400 U.S. 957, 91 S.Ct. 355, 27 L.Ed.2d 265 (1970); Jackson v. Dorrier, 424 F.2d 213 (6th Cir.) (per curiam), cert. denied, 400 U.S. 850, 91 S.Ct. 55, 27 L.Ed.2d 88 (1970); Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969), cert. denied, 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268 (1970); Ferrell v. Dallas Indep. School Dist., 392 F.2d 697 (5th Cir.), cert. denied, 393 U.S. 856, 89 S.Ct. 98, 21 L.Ed.2d 125 (1968).

14 . Justice Douglas filed opinions dissenting from the denial of certiorari in Freeman v. Flake, 405 U.S. 1032, 92 S.Ct. 307, 34 L.Ed.2d 256 (1972); Olff v. East Side Union High School Dist., 404 U.S. 1042, 92 S.Ct. 342, 30 L.Ed.2d 294 (1972), and Ferrell v. Dallas Indep. School Dist., 393 U.S. 856, 89 S.Ct. 98, 21 L.Ed.2d 125 (1968). In addition, the denials in Karr and Jackson show Justice Douglas as being of the opinion that certiorari should be granted; in King, the order denying cert, indicates that Justice White joined Justice Douglas in a contrary view.

15 . § 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

16 . § 1343. Civil rights and elective franchise

The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:

(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.

17 . Ann.Rep. of Director of Administrative Office of the United States Courts — 1968, Table X 2 (1969) [hereinafter cited as AO Ann.Rep. by year]. The AO statistics lump § 1983 suits with other civil rights actions, but § 1983 actions comprise the vast majority.

18 . United States Code Annotated (1974) contains 468 pages of annotations under § 1983; the 1975 Supplement adds 104 pages.

19 . AO Ann.Rep. — -1974, Tables C 2, C 3. Taken together, all categories of civil rights actions comprise 12.7 percent of the pending federal civil caseload, or 13,647 of 107,230 cases. Ibid, at IX-29.

20 . Llewellyn, A Realistic Jurisprudence — The Next Step, 30 Colum.L.Rev. 431, 464 (1930).

21 . Aldisert, Judicial Expansion of Federal Jurisdiction: A Judge’s Thoughts on Section 1983, Comity and the Federal Caseload, 1973 Ariz.St.U.L.J. 557, 567-71, 573-74; see H. Friendly, Federal Jurisdiction: A General View 90-92 (1973).

22 . Pound, Hierarchy of Sources and Forms in Different Systems of Law, 7 Tul.L.Rev. 475, 482-86 (1933).

23 . L. Hand, The Spirit of Liberty 278 (3d ed. 1960).

24 . Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv.L.Rev. 1, 19 (1959).

25 . Griswold, The Judicial Process, 31 Fed.B.J. 309, 319 (1972) (footnote omitted).

26 . In Stull we evaluated the First Circuit view that the claimed constitutional hair right was implicit in the “liberty” assurance of the Due Process Clause of the Fourteenth Amendment and the Seventh Circuit opinion that it was more a penumbral or Ninth Amendment right, 459 F.2d at 345-47, concluding:

We agree that the differences in the above mentioned conceptual approaches to the problem are in considerable measure semantic and that there is indeed a common theme in all of these cases. However, it is our view that the First Circuit’s approach was correct; we therefore prefer to follow it and hold that the governance of the length and style of one’s hair is implicit in the liberty assurance of the Due Process Clause of the Fourteenth Amendment. It may well be that this formulation in effect adopts the concept of penumbral rights; yet, we are inclined to agree with the view of the [First Circuit] court that in the absence of further guidance from the Supreme Court, we ought not to expand the Ninth Amendment beyond the notions applied to the right of (marital) privacy as expressed in Griswold.

Ibid, at 347 (footnote omitted).

27 . In Stull we did not articulate specific reasons for the constitutional decision. Cf. ibid. at 345. In this connection, we think it appropriate to note the comment of Judge Boreman, dissenting in Massie v. Henry, 455 F.2d 779, 784 n.1 (4th Cir. 1972): “The general contusion . . . as to precisely which constitutional right, if any, is involved when a student is prohibited from letting his hair grow to a desired length, perhaps is, in itself, indicative that there is none."

28 . Levi, An Introduction to Legal Reasoning, 15 U.Chi.L.Rev. 501, 542-13 (1948): “Each major concept written into the [Constitution] embodies a number of conflicting ideals. . The conflicting ideas are represented by satellite categories which interpret the written word. No one satellite concept can control. The major words written in the document are too ambiguous; the ideals are too conflicting, and no interpretation can be decisive. The satellite words are handled with a recognition that they involve the perennial problems of government; the relationship between problems of the person, the state, and property rights.”

29 . Although the Court divided 5-4 on the issue of the extent of the immunity from § 1983 damage suits enjoyed by school administrators and school board officials, the Court was unanimous in its ruling on the substantive due process claim.

30 . Hopkins, Public Policy and the Formation of a Rule of Law, 37 Brooklyn L.Rev. 323, 324 (1971).

31 . See Polite v. Diehl, 507 F.2d 119, 141 (3d Cir. 1974) (Kalodner, J., dissenting).

32 . McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407, 4 L.Ed. 579 (1819).

33 . B. Cardozo, The Nature of the Judicial Process 83 (1921).

34 . The significance of these considerations is manifest in Holmes’ classic definition: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 461 (1897).