Poe v. Werner

ROSENN, Circuit Judge

(concurring).

I join in that part of the opinion of Judge Sheridan which holds that the hair length regulation does not violate the due process clause. However, I differ in my approach to the equal protection clause claim.

As Judge Sheridan’s opinion correctly observes, the level of judicial scrutiny necessitated by an equal protection claim depends on two factors: the nature of the constitutional right affected and the nature of the classification created by the state action. He assumes that the same equal protection test should be used within and without the prison walls. I disagree with this assumption because I believe that the equal protection test normally used to judge state action which impinges upon a fundamental right is not appropriate in a prison environment. I do believe, however, that the strict equal protection test used to judge state action which creates a suspect class is appropriate in a prison setting.

The question whether the right to control one’s hairstyle is constitutionally protected has divided courts of appeals confronted with the issue. See note 1 of Judge Sheridan’s opinion. This division is perhaps best illustrated by the Court of Appeals for the Fifth Circuit in Karr v. Schmidt, 460 F.2d 609 (5th Cir.) (en banc), cert. denied, 409 U.S. 989 , 93 S.Ct. 307 , 34 L.Ed.2d 256 (1972), in which the court, by a 7 and 1 concurring to 7 vote held that the right is not cognizable in a federal court. Incredible as it may appear, a further division exists among the courts, which have considered the right to be constitutionally protected, as to what is the precise nature of the right.

One line of cases views the right as derived from the right of privacy found within either the penumbra of the Bill of Rights or within the ninth amendment. Therefore, these courts view the right as fundamental.

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. * * * Whether this right is designated as within the “penumbras” of the first amendment freedom of speech, * * * or as encompassed within the ninth amendment as an “additional right [s] * * * which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments,” * * * it clearly exists and is applicable to the states through the due process clause of the fourteenth amendment.

*1022 To limit or curtail this or any other fundamental right, the state has a “substantial burden of justification.”

Breen v. Kahl, 419 F.2d 1034, 1036 (7th Cir. 1969), cert. denied, 398 U.S. 937 , 90 S.Ct. 1836 , 26 L.Ed.2d 268 (1970).

A second line of cases views the right as part of the sphere of personal liberty protected by the due process clause. This line does not see the right as fundamental.

[W]e believe that the Due Process Clause of the Fourteenth Amendment establishes a sphere of personal liberty for every individual, subject to reasonable intrusions by the state in furtherance of legitimate state interests.

* -X- * -x- -X- *

We do not say that the governance of the length and style of one’s hair is necessarily so fundamental as those substantive rights already found implicit in the “liberty” assurance of the Due Process Clause, requiring a “compelling” showing by the state before it may be impaired.

Richards v. Thurston, 424 F.2d 1281, 1284 (1st Cir. 1970).

Still a third line of cases views the differing formulations of the above cases as mere semantics, and considers the nature of the right immaterial.

Some have referred tq the right as “fundamental,” others as “substantial,” others as “basic,” and still others as simply a “right.” ... A close reading of these cases reveals, however, that the differences in approach are more semantic than real. The common theme underlying decisions striking down hairstyle regulations is that the Constitution guarantees rights other than those specifically enumerated, and that the right to govern one’s personal appearance is one of those guaranteed rights.

Bishop v. Colaw, 450 F.2d 1069, 1075 (8th Cir. 1971). 1

This division is also reflected in the Third Circuit. In Gere v. Stanley, 453 F.2d 205 (3d Cir. 1971), the court assumed arguendo that Gere had the right to wear long hair, that “if a right to long hair vis-a-vis the State exists under the Constitution, it must arise under the ‘liberty’ and ‘due process’ portions of the Fourteenth Amendment,” id. at 207 n. 4, and that the right was subject to “reasonable regulations” by the state. Id. at 209 .

Then, in Stull v. School Board of Western Beaver Junior-Senior High School, 459 F.2d 339 (3d Cir. 1972), the court seemed to simultaneously adopt the views of all three lines of cases. First, it agreed with Bishop v. Colaw, supra, that “the differences to 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.” Id. at 347. It then agreed with the First Circuit and held 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 Richards 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.

Id. at 347.

However, the court, in discussing whether a hair style regulation was reasonable in shop classes, suggested that the state must use less restrictive alternatives in regulating the length of hair.

For instance, perhaps nets or head bands could provide the requisite safety in such classes, or other measures could be adopted which are designed *1023 to assure that their legitimate purpose —safety—is accomplished, as long as they are as limited as possible so as not to overly burden the exercise of a protected right.

Id. at 347. The less restrictive alternative test is one that is used in assessing the validity of regulations affecting fundamental rights.

I do not believe that it is necessary to resolve this question at this time. Assuming arguendo that the right to control one’s hairstyle is a fundamental constitutional right, I do not believe that the strict equal protection test should be used to judge a claim in a prison setting that a state regulation affects a fundamental right. Strict judicial scrutiny affords little if any leeway in the state’s treatment of fundamental rights. As recently noted in Procunier v. Martinez, 416 U.S. 396, 404-405 , 94 S.Ct. 1800, 1807 , 40 L.Ed.2d 224 (1974):

Traditionally, federal courts have adopted a broad hands-off attitude toward problems of prison administration. . . . [T]his attitude springs from complementary perceptions about the nature of the problems and the efficacy of judicial intervention. Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill-equipped to deal with the increasingly urgent problems of prison administration and reform.

Prison officials should be afforded considerable latitude in reconciling the fundamental rights of prisoners with the needs and purposes of the prison environment. I believe that the traditional rational basis test should be the one used to measure claims of prisoners in confinement that state action interferes with a constitutional right. This approach is suggested by two recent Supreme Court cases which have considered the rights of state prisoners in an institutional environment.

In Wolff v. McDonnell, 418 U.S. 539 , 94 S.Ct. 2963 , 41 L.Ed.2d 935 (1974), the Supreme Court, while holding that prison authorities must provide due process to prisoners facing institutional disciplinary proceedings, denied the prisoners the procedural protection it had given to those facing revocation of parole. It noted:

[I]t is immediately apparent that one cannot automatically apply procedural rules designed for free citizens in an open society ... to the very different situation presented by a disciplinary proceeding in a state prison.

Id. at 560 , 94 S.Ct. at 2977. See Braxton v. Carlson, 483 F.2d 933 (3d Cir. 1973).

Similarly, in Pell v. Procunier, 417 U. S. 817 , 94 S.Ct. 2800 , 41 L.Ed.2d 495 (1974), the Court held that, in light of the availability of alternative methods of communication by prisoners with members of the press, the prevention of prisoners’ personal interviews with members of the press did not violate the prisoners’ first amendment rights. The Court wrote:

We would find the availability of such alternatives unimpressive if they were submitted as justification for governmental restriction of personal communication among members of the general public. We have recognized, however, that “[t]he relationship of state prisoners and the state officers *1024 who supervise their confinement is far more intimate than that of a State and a private citizen,” and that the “internal problems of state prisons involve issues . . . peculiarly

within state authority and expertise.” Id. at 825-826 , 94 S.Ct. at 2805-2806.

I would therefore apply the rational basis equal protection test, which affords prison authorities the discretion they need, even if the state action involved affects a fundamental right. Accord, Cruz v. Beto, 405 U.S. 319, 323, 325-326 , 92 S.Ct. 1079 , 31 L.Ed.2d 263 (1972) (Rehnquist, J., dissenting).

I would not, however, apply the rational basis equal protection test if the state action were to create a suspect classification. The latitude allotted prison authorities in reconciling the rights of prisoners with the responsibilities of competent' prison administration does not necessarily imply the use of a relaxed equal protection test when a suspect classification is created. See Lee v. Washington, 390 U.S. 333 , 88 S.Ct. 994 , 19 L.Ed.2d 1212 (1968) (racial segregation in prisons). Thus, while I would not apply the strict equal protection test to this prison regulation merely because it interfered with the prisoners’ hairstyles, I would apply it if I concluded the regulation created a gender classification, and if I believed sex was a suspect class. 2

Although the regulation appears on its surface to classify prisoners on the basis of gender, Dr. Joseph Mazurkiewicz, the state’s expert witness, testified that the application of the regulation was predicated upon the character of the institution in which the prisoner was confined. Female prisoners in Pennsylvania are confined to “open” institutions. These are minimal security facilities where women live in structurally different environments and are housed in cottages. Prisoners in closed or maximum security institutions, such as Rockview, have only male prisoners. Prisoners in such institutions are subject to the hair regulation; prisoners, male or female, in open institutions including the regional correctional facility, or county jails, are not.

In Geduldig v. Aiello, 417 U.S. 484 , 94 S.Ct. 2485 , 41 L.Ed.2d 256 (1974), the Supreme Court held that a disability program that covered all disabilities except those derived from normal pregnancy did not create a classification based on gender. It noted:

The lack of identity between the excluded disability and gender as such under this insurance program becomes clear upon the most cursory analysis. The program divides potential recipients into two groups — pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes.

Id. at 497 n. 20, 94 S.Ct. at 2492. Similarly, the group of prisoners whose hair length is regulated is all male, but the group of prisoners whose hair length is not regulated includes both males and females. I therefore conclude that the hair length regulation classifies on the basis of the type of institution in which the prisoner is confined, rather than on the basis of gender.

Since the state action here does not create an invidious classification or a classification based on gender, I believe the traditional “rational basis” test is the yardstick to be used in determining whether the hair length regulation violates the equal protection clause. Applying this yardstick, the record provides a legitimate basis for the differing treatment of prisoners under the regulation as is discussed more fully by Judge Sheridan in that part of his opinion dealing with the equal protection problem. I therefore believe the classifica *1025 tion created is constitutionally permissible.

I might add, however, that I would have some difficulty sustaining the regulation under the equal protection clause if I viewed it as creating a classification based on gender. I am not convinced that the policies behind the regulation, such as ease of identification of prisoners, the prevention of smuggling of contraband, the prevention of homosexual assaults, the encouragement of individual discipline, and the maintenance of personal hygiene apply with any greater force to men than to women.

I therefore agree with Judge Sheridan that plaintiff’s request for injunctive relief should be denied.

. Accord, Massie v. Henry, 455 F.2d 779 (4th Cir. 1972). In addition, Massie views the right as “having equal protection clause considerations.” Id. at 783 .

. It is unclear at this time whether sex is an invidious classification. See Kahn v. Shevin, 416 U.S. 351 , 94 S.Ct. 1734 , 40 L.Ed.2d 189 (1974); Frontiero v. Richardson, 411 U.S. 677 , 93 S.Ct. 1764 , 36 L.Ed.2d 583 (1973); Reed v. Reed, 404 U.S. 71 , 92 S.Ct. 251 , 30 L.Ed.2d 225 (1971).