Kelley v. Johnson

Mr. Justice Marshall,

with whom Mr. Justice Brennan joins, dissenting.

The Court today upholds the constitutionality of Suffolk County’s regulation limiting the length of a police *250 man’s hair. While the Court only assumes for purposes of its opinion that “the citizenry at large has some sort of 'liberty’ interest within the Fourteenth Amendment in matters of personal appearance . . . ,” ante, at 244, I think it clear that the Fourteenth Amendment does indeed protect against comprehensive regulation of what citizens may or may not wear. And I find that the rationales offered by the Court to justify the regulation in this case are insufficient to demonstrate its constitutionality. Accordingly, I respectfully dissent.

I

As the Court recognizes, the Fourteenth Amendment’s guarantee against the deprivation of liberty “protects substantive aspects of liberty against unconstitutional restrictions by the State.” Ante, at 244. And we have observed that “[l]iberty under law extends to the full range of conduct which the individual is free to pursue.” Bolling v. Sharpe, 347 U. S. 497, 499 (1954). See also Poe v. Ullman, 367 U. S. 497, 543 (1961) (Harlan, J., dissenting). 1 It seems to me manifest that that “full range of conduct” must encompass one’s interest in dressing according to his own taste. An individual’s personal appearance may reflect, sustain, and nourish his personality and may well be used as a means of expressing his *251 attitude and lifestyle. 2 In taking control over a citizen’s personal appearance, the government forces him to sacrifice substantial elements of his integrity and identity as well. To say that the liberty guarantee of the Fourteenth Amendment does not encompass matters of personal appearance would be fundamentally inconsistent with the values of privacy, self-identity, autonomy, and personal integrity that I have always assumed the Constitution was designed to protect. See Roe v. Wade, 410 U. S. 113 (1973); Stanley v. Georgia, 394 U. S. 557, 564 (1969); Griswold v. Connecticut, 381 U. S. 479, 485 (1965); Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting).

If little can be found in past cases of this Court or indeed in the Nation’s history on the specific issue of a citizen’s right to choose his own personal appearance, it is only because the right has been so clear as to be beyond question. When the right has been mentioned, its existence has simply been taken for granted. For instance, the assumption that the right exists is reflected in the 1789 congressional debates over which guarantees should be explicitly articulated in the Bill of Rights. I. Brant, The Bill of Rights 53-67 (1965). There was considerable debate over whether the right of assembly should be expressly mentioned. Congressman Benson of New York argued that its inclusion was necessary to assure that the right would not be infringed by the government. In response, Congressman Sedg-wick of Massachusetts indicated:

“If the committee were governed by that general *252 principle . . . they might have declared that a man should have a right to wear his hat if he pleased . . . but [I] would ask the gentleman whether he thought it necessary to enter these trifles in a declaration of rights, in a Government where none of them were intended to he infringed.” Id., at 54-55 (emphasis added).

Thus, while they did not include it in the Bill of Rights, Sedgwick and his colleagues clearly believed there to be a right in one’s personal appearance. And, while they may have regarded the right as a trifle as long as it was honored, they clearly would not have so regarded it if it were infringed.

This Court, too, has taken as an axiom that there is a right in one’s personal appearance. 3 Indeed, in 1958 we used the existence of that right as support for our recognition of the right to travel:

“The right to travel is a part of the 'liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment. ... It may he as close to the heart of the individual as the choice *253 of what he eats, or wears, or reads.” Kent v. Dulles, 357 U. S. 116, 125-126 (1958) (emphasis added).

To my mind, the right in one’s personal appearance is inextricably bound up with the historically recognized right of “every individual to the possession and control of his own person,” Union Pacific R. Co. v. Botsford, 141 U. S. 250, 251 (1891), and, perhaps even more fundamentally, with “the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.” Olmstead v. United States, supra, at 478 (Brandeis, J., dissenting). In an increasingly crowded society in which it is already extremely difficult to maintain one’s identity and personal integrity, it would be distressing, to say the least, if the government could regulate our personal appearance unconfined by any constitutional strictures whatsoever. 4

*254 II

Acting on its assumption that the Fourteenth Amendment does encompass a right in one’s personal appearance, the Court justifies the challenged hair-length regulation on the grounds that such regulations 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.” Ante, at 248. While fully accepting the aims of “identifiability” and maintenance of esprit de corps, I find no rational relationship between the challenged regulation and these goals. 5

As for the first justification offered by the Court, I simply do not see how requiring policemen to maintain hair of under a certain length could rationally be argued to contribute to making them identifiable to the public as policemen. Surely, the fact that a uniformed police officer is wearing his hair below his collar will make him *255 no less identifiable as a policeman. And one cannot easily imagine a plainclothes officer being readily identifiable as such simply because his hair does not extend beneath his collar.

As for the Court’s second justification, the fact that it is the president of the Patrolmen’s Benevolent Association, in his official capacity, who has challenged the regulation here would seem to indicate that the regulation would if anything, decrease rather than increase the police force’s esprit de corps. 6 And even if one accepted the argument that substantial similarity in appearance would increase a force’s esprit de corps, I simply do not understand how implementation of this regulation could be expected to create any increment in similarity of appearance among members of a uniformed police force. While the regulation prohibits hair below the ears or the collar and limits the length of sideburns, it allows the maintenance of any type of hairstyle, other than a ponytail. Thus, as long as their hair does not go below their collars, two police officers, one with an “Afro” hair style and the other with a crewcut could both be in full compliance with the regulation. 7

*256 The Court cautions us not to view the hair-length regulation in isolation, but rather to examine it “in the context of the county's chosen mode of organization for its police force.” Ante, at 247. While the Court’s caution is well taken, one should also keep in mind, as I fear the Court does not, that what is ultimately under scrutiny is neither the overall structure of the police force nor the uniform and equipment requirements to which its members are subject, but rather the regulation which dictates acceptable hair lengths. The fact that the uniform requirement, for instance, may be rationally related to the goals of increasing police officer “identifi-ability” and the maintenance of esprit de corps does absolutely nothing to establish the legitimacy of the hair-length regulation. I see no connection between the regulation and the offered rationales 8 and would accordingly affirm the judgment of the Court of Appeals.

We have held that the Constitution’s protection of liberty encompasses the interest of parents in having their children learn German, Meyer v. Nebraska, 262 U. S. 390 (1923); the interest of parents in being able to send their children to private as well as public schools, Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925); the interest of citizens in traveling abroad, Kent v. Dulles, 357 U. S. 116, 125 (1958); Aptheker v. Secretary of State, 378 U. S. 500, 505 (1964); the interest of a woman in deciding whether or not to terminate her pregnancy, Roe v. Wade, 410 U. S. 113, 153 (1973); and the interest of a student in the damage to his reputation caused by a 10-day suspension from school. Goss v. Lopez, 419 U. S. 565, 574-575 (1975).

While the parties did not address any First Amendment issues in any detail in this Court, governmental regulation of a citizen’s personal appearance may in some circumstances not only deprive him of liberty under the Fourteenth Amendment but violate his First Amendment rights as well. Tinker v. Des Moines School Dist., 393 U. S. 503 (1969).

There has been a substantial amount of lower-court litigation concerning the constitutionality of hair-length and dress-code regulations as applied to schoolchildren. Some of the cases have found the rationales offered for such regulations to be sufficient to support their constitutionality. See, e. g., King v. Saddleback Junior College Dist., 445 F. 2d 932 (CA9), cert. denied, 404 U. S. 979 (1971); Gfell v. Rickelman, 441 F. 2d 444 (CA6 1971); Ferrell v. Dallas Independent School Dist., 392 F. 2d 697 (CA5), cert. denied, 393 U. S. 856 (1968). Other cases have found similar regulations unconstitutional. See, e. g., Richards v. Thurston, 424 F. 2d 1281 (CA1 1970); Breen v. Kahl, 419 F. 2d 1034 (CA7 1969), cert. denied, 398 U. S. 937 (1970). None of the cases, however, have indicated that the Constitution may offer no protection at all against comprehensive regulation of the personal appearance of the citizenry at large.

History is dotted with instances of governments regulating the personal appearance of their citizens. For instance, in an effort to stimulate his countrymen to adopt a modem lifestyle, Peter the Great issued an edict in 1698 regulating the wearing of beards throughout Russia. W. & A. Durant, The Age of Louis XIV, p. 398 (1963). Anyone who wanted to grow a beard had to pay an annual tax of from one kopek for a peasant to one hundred rubles for a rich merchant. Ibid. Of those who could not afford the “beard tax,” there were many “who, after having their beards shaved off, saved them preciously, in order to have them placed in their coffins, fearing that they would not be allowed to enter heaven without them.” J. Robinson, Readings in European History 390 (1906).

There are more recent instances, too, of governments regulating the personal appearance of their citizens. See, e. g., N. Y. Times, Feb. 18, 1974, p. 22, col. 4 (Czech police stop long-haired young men, telling them to get haircuts); id., July 23, 1972, p. 4, col. 1 (Libyan Government tells youths to trim hair and wear more sober clothes or submit themselves for training in the army); id., July 7, 1971, p. 22, col. 8 (over 1,000 young men rounded up and given haircuts by South Korean police in what was described by government officials as a “social purification” campaign); id., Oct. 13, 1970, p. 11, col. 1 (police force more than 1,400 South Vietnamese youths to cut *254 their hair). It is inconceivable to me that the Constitution would offer no protection whatsoever against the carrying out of similar actions by either our Federal or State Governments.

A policeman does not surrender his right in his own personal appearance simply by joining the police force. See Tinker v. Des Moines School Dist., 393 U. S., at 506 . I agree with the Court of Appeals that the “status of the individual raising the claim bears [not on the existence of the right, but rather] on the question of whether the right is outweighed by a legitimate state interest.” 483 F. 2d, at 1130 n. 9. Thus, the need to evaluate the governmental interest and the connection between it and the challenged governmental action is as present when the party whose rights have allegedly been violated is a public employee as when he is a private employee. See CSC v. Letter Carriers, 413 U. S. 548, 564-567 (1973). To hold that citizens somehow automatically give up constitutional rights by becoming public employees would mean that almost 15 million American citizens are currently affected by having “executed” such “automatic waivers.” Statistical Abstract of the United States 1975, p. 272.

Nor, to say the least, is the esprit de corps argument bolstered by the fact that the International Brotherhood of Police Officers, a 25,000-member union representing uniformed police officers, has filed a brief as amicus curiae arguing that the challenged regulation is unconstitutional.

The regulation itself eschews what would appear to be a less intrusive means of achieving similarity in the hair length of on-duty officers. According to the regulation, a policeman cannot comply with the hair-length requirements by wearing a wig with hair of the proper length while on duty. The regulation prohibits the wearing of wigs or hairpieces "on duty in uniform except for cosmetic reasons to cover natural baldness or physical disfiguration.” Ante, at 240 n. 1. Thus, while the regulation in terms applies to grooming standards of policemen while on duty, the hair-length provision effectively controls both on-duty and off-duty appearance.

Because, to my mind, the challenged regulation fails to pass even a minimal degree of scrutiny, there is no need to determine whether, given the nature of the interests involved and the degree to which they are affected, the application of a more heightened scrutiny would be appropriate.