Larry Lowman v. Richard Davies, Parks Division Director, Arkansas Department of Parks & Tourism, Individually and in His Official Capacity

704 F.2d 1044, 1983 U.S. App. LEXIS 28864, 31 Empl. Prac. Dec. (CCH) 33,515

• Court: Court of Appeals for the Eighth Circuit
• Decided: April 13, 1983
• Docket: 82-1933
• Status: Published

Opinions

HENLEY, Senior Circuit Judge.

Appellee Larry Lowman is employed by the appellant, the Arkansas Department of Parks & Tourism, Parks Division, as a Park Naturalist at Village Creek State Park. In December, 1981 the Division issued a regulation requiring park superintendents, rangers, and naturalists to keep their hair cut above collar-length.¹ Lowman’s hair is longer than that allowed by the regulation. Lowman was given an oral warning in May, 1982 that he was in violation of the regulations. In June he was given a written warning, which also informed him that he would be suspended and then fired if he did not cut his hair. Division regulations require an administrative hearing for employees who are being fired, but Lowman’s hearing was scheduled to be held after his termination date. Lowman filed suit against Richard Davies, Division Director, seeking declaratory and injunctive relief. He alleged that the regulation (1) violated his constitutional right to govern his appearance, (2) was promulgated as the result of a personal vendetta against him by certain Division personnel in violation of his due process rights, and (3) as applied to him, deprived him of a protected property interest in his job without procedural due process. After a hearing, the district court found that the regulation violated Low-man’s constitutional right to govern his personal appearance. Davies was permanently enjoined from applying the regulation to Lowman, and the district court awarded attorneys’ fees to Lowman’s lawyers. Davies appeals from both orders. We reverse and remand for further proceedings.

In Bishop v. Colaw, 450 F.2d 1069 (8th Cir.1971), this court held that “among those rights retained by the people under our constitutional form of government is the freedom to govern one’s personal appearance.” 450 F.2d at 1075. Bishop involved a school board rule which established hair length for male students. The court held that the rule infringed upon students’ rights to wear their hair at the length they chose. However, the court noted that the right is not absolute, and must be weighed against the state’s interest in the limitation at issue. Id.

The Supreme Court addressed hair length regulations in Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976), and upheld a regulation applied to police officers. The Court assumed without deciding that there was a liberty interest in personal appearance, but held that the hair length regulation did not violate that right. The Court stated that hair length regulations cannot be viewed in isolation, but rather must be considered in context and stressed the nature of a policeman’s job, the need for discipline, the wide scope of the state’s police power, and the deference which should be afforded local regulations governing police officers. 425 U.S. at 245-46, 96 S.Ct. at 1444-1445. The Court required the police officer to show “no rational connection” between the regulation and the promotion of public safety. 425 U.S. at 247, 96 S.Ct. at 1445. The Court found that

similarity in appearance of police officers is desirable. This choice may be based on a desire to make police officers readily recognizable to the members of the public, or a desire for the esprit de corps which such similarity is felt to inculcate within the police force itself. Either one is a sufficiently rational justification for [these] regulations.

Kelley v. Johnson, 425 U.S. at 248, 96 S.Ct. at 1446.

Kelley and Bishop establish that the constitutional right of a state employee to govern his appearance can be limited by the state if the state has a rational, nonarbitrary reason for such a limit. Kelley v. Johnson, 425 U.S. at 247, 96 S.Ct. at 1445; Bishop v. Colaw, 450 F.2d at 1075.

Lowman is employed by the state as a park naturalist. His duties are primarily educational and developmental: he prepares trails, designs special exhibits and programs, and conducts tours and hikes. He works closely with other members of the parks management team, which includes the park ranger, the assistant superintendent, and the superintendent. He also has some law enforcement duties. While he cannot issue tickets or make arrests, he is required to warn violators of state regulations or laws, and to seek assistance from a ranger if the violation persists; in that respect he may appropriately be characterized as an “authority figure.”

The state has articulated several reasons for its hair regulation. The state believes it makes the members of the park management team, including the naturalist, more readily recognizable to the public. The state also believes that a park official seeking to deter or stop violations of park regulations is more likely to be obeyed if he has short hair than if he has long hair. Finally, the state believes that similarity in hair length promotes esprit de corps among members of the parks management team.

These goals are all legitimate. Our role is not to decide whether the regulation is wise, or the best way to meet these goals. Rather, we only decide if the regulation bears a rational relationship to these goals.

The Court in Kelley held that hair regulations for policemen are rationally related to the state’s interest in assuring ease of recognition and promoting esprit de corps. Kelley v. Johnson, 425 U.S. at 248, 96 S.Ct. at 1446. Because the park naturalist has law enforcement duties, we believe that Kelley is controlling. We will not interfere with the approach chosen by the Parks Division to meet legitimate goals, when, as here, that approach cannot be characterized as wholly arbitrary.² For this reason the district court’s judgment must be reversed.

The award of attorneys’ fees must also be reversed. Harris v. Pirch, 677 F.2d 681, 689 (8th Cir.1982). Lowman is no longer a “prevailing party” within the meaning of the Civil Rights Attorneys’ Fees Award Act, 42 U.S.C. § 1988.

Lowman’s due process claims were not heard or decided by the district court. Therefore, the case must be remanded for further proceedings on those claims.³

The judgment of the district court is reversed, and the case remanded for further proceedings.

1 . The regulation provides in pertinent part:

Males in Uniform

Males shall maintain hair length so there is no hair below the collar or the lobe of the ear. Hair will be clean and combed in a neat, orderly manner and shall present a tapered appearance on the back and side of the head. Conservative Afro-style hair is acceptable. The bulk of the length of hair cannot interfere with proper wearing of uniform hat.

Sideburns are acceptable as long as they are neat and trimmed and tapered with the ends clean shaven in a horizontal line. The sideburns will not extend longer than the lobe of the ear.

Mustaches are acceptable as long as they are trimmed and maintained in a neat manner. Mustaches will not be grown to hang below the comers of the mouth, nor will they be twisted or curled on the ends.

Beards are acceptable as long as they are trimmed and maintained in a neat manner. Beards will be kept trimmed with length not to exceed 1" at any point.

2 . Nevertheless, we note the expressed hope of the Fifth Circuit that this type of regulation may become unnecessary as “the public, with growing thousands of entirely responsible adult members of the community wearing all sorts of hair and face trims, ... comefs] to its senses and does not see in such variations the seeds of violence and revolution.” Domico v. Rapides Parish School Board, 675 F.2d 100, 101 (5th Cir.1982).

3 . Lowman is, by some accounts, an exemplary park naturalist with a good record. We do not think it inappropriate to suggest that the parties reconsider their positions with an eye towards settling this litigation.