# Poe v. Werner > District Court, M.D. Pennsylvania · December 2, 1974 · 386 F. Supp. 1014 URL: https://www.frixlaw.com/law-library/cases/9751963 ## Case - **Full name:** Raymond Edwin POE, K-1106, Plaintiff, v. Stewart WERNER, Commissioner of the Bureau of Corrections of Pennsylvania, Et Al., Defendants - **Court:** District Court, M.D. Pennsylvania - **Decided:** December 2, 1974 - **Citations:** 386 F. Supp. 1014; 1974 U.S. Dist. LEXIS 11809 - **Precedential status:** Published - **Opinion:** Dissent by Muir - **Judges:** Rosenn, Sheridan, Muir - **Cited by:** 17 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9751963 ## How later opinions describe it (automated extraction) - applying intermediate scrutiny to a gender-based prison classification ## Opinion text MUIR, District Judge (dissenting). Initially, I must respectfully register my disagreement with the majority’s position on the question of whether this three-judge court is required to follow the decisions of the Court of Appeals for the Third Circuit or whether we are bound only by decisions of the U. S. Supreme Court. Despite the fact that an appeal of our decision would be taken directly to the Supreme Court, it is my opinion that a three-judge district court is still a district court, and for that reason is bound by the decisions of the Court of Appeals for the Circuit in which the district is located. Having taken that position, I would hold, in contrast to the majority, that we are bound by the holding of the Court of Appeals for the Third Circuit that the right to determine the length and style of one’s hair is implicit in the liberty guarantee of the due process clause of the Fourteenth Amendment. Stull v. School Board of Western Beaver Junior-Senior High School, 459 F.2d 339 (3d Cir. 1972). However, since the majority assumed arguendo that this is the law by which it is bound, this is not the primary ground for my dissent. The test enunciated in Stull as to the regulation of hair length and style involves a balancing of the reasonableness of the regulation against the personal freedom guarantees enjoyed by the individual being regulated. The majority has found that the reasons put forth by the Defendant for the hair regulation in question outweigh the personal freedom interests of the prisoners who are subject to the regulations. My disagreement with the majority stems from my opinion that those reasons do not satisfy the test promulgated by the Third Circuit Court of Appeals in Stull . The majority finds that the regulations are necessary to preserve internal order and discipline at state prisons, to maintain institutional security, and to rehabilitate prisoners. Certainly, if I felt that the regulations did in fact further these laudable ends, I would agree that they are reasonable regulations despite their infringement on a personal freedom guaranteed by the 14th Amendment. I do not, however, believe that they advance attainment of those goals or that they were promulgated for those purposes. The Defendants claim that by regulating the length and style of inmates’ hair internal order is enhanced in two ways. First, they assert that homosexual activity is reduced by the elimination of long hair. Second, they contend that short hair reduces disruption by those inmates who resent long hair on fellow inmates. Both of these arguments are unacceptable. With respect to the first point, I doubt that the elimination of long hair styles will have a significant effect on homosexual activity. The causes for such activity include a great deal more than the length of a prisoner’s hair. Allegedly combatting the problem by prohibition of longer than shoulder-length hair treats one of its possible symptoms but does not go to its cause. Such an approach to the problem ignores more significant reasons for its occurrence. Further, testimony of the Defendants’ principal witness, Dr. J. F. Mazurkiewicz, Superintendent of the State Correctional Institution at Rockview, contradicts this alleged justification. At page 18 of the record of this case, Dr. Mazur *1026 kiewicz testified that prisoners under .minimum security are not subject to the hair regulations in force in maximum security institutions. But there was no testimony that homosexuality is a problem confined to prisoners requiring maximum security measures. Therefore, if the claim that the reduction of homosexual activity constitutes a legitimate reason for regulation of hair length is to be taken seriously, the regulation should be in force throughout the prison system without regard to the degree of security in force. I believe that the rationale that the hair regulation supposedly furthers internal order by reducing inter-prisoner disruption is impermissible. If, as the Third Circuit has held, the right to determine the length and style of one’s hair is implicit in the liberty assurance of the due process clause of the 14th Amendment, the fact that other prisoners are upset by the exercise of this freedom should not be a grounds for denying its expression. One would not, for example, accept curbs on the exercise of a particular religion within the prison system on the ground that other prisoners object to it and cause disruptions with inmates who so worship. While I realize that freedom of religion is given greater constitutional weight than freedom to wear one’s hair as one wishes, prison authorities must attempt to carry out their obligation to maintain order in a manner which infringes as minimally as possible on those personal freedoms which prisoners are entitled to enjoy during incarceration. It is the job of prison officials to control conflicts among inmates. That task may be made somewhat more difficult by the expression of constitutionally protected rights but it does not seem in this case to be too great a price to pay to protect those freedoms. The Defendants assert as a further justification for the hair regulation that it aids in the maintenance of institutional security by eliminating at least one area of possible concealment of contraband. Admittedly, this is the strongest reason given for the existence of the regulation. I would have no argument with a regulation which prohibits long hair in maximum security institutions but not in minimum security prisons if that regulation were based on a demonstration that concealment of contraband was a problem of significant magnitude in the former institutions but not in the latter. But the plain fact is that the regulation on its face in no way indicates that this is the reason for its existence. The regulation, while making clear distinctions between male and female grooming, makes no reference whatsoever to maximum or minimum security status. If concealment of contraband is the problem sought to be attacked and if it only exists to a significant degree where maximum security is in force, then the regulation should be written to reflect that fact. But until such a change is made, the regulation as it is presently written cannot be sustained on the basis of an explanation for its existence which varies so greatly from its actual wording. The Defendants’ final major rationale for the hair regulation is that it furthers the rehabilitative function of prisons by restoring a minimum amount of personal discipline in the inmates. Besides being unconvincing, this justification for the regulation flies in the face of the holding by the Third Circuit that the determination of the length and style of one’s hair is a personal freedom guaranteed by the 14th Amendment. The Defendants have cited other minor reasons in support of the regulation. I do not intend in the course of this dissent to rebut all of those reasons. They are, in my view, not at all sufficient to outweigh the interest in personal freedom with which we are dealing here. Even were I to agree with the majority’s holding that the reasons stated for the hair regulation do outbalance the personal freedom guarantee in question, I would nonetheless dissent because I feel that the hair regulation violates the Equal Protection Clause of the 14th Amendment. Initially, I would like to *1027 record my view that discrimination based on sexual classifications is either never, or hardly ever, justifiable. I am aware that no majority opinion of the Supreme Court has ever gone so far as to hold that sex is a “suspect” classification requiring the showing of a compelling state interest for different treatment based on that grouping. My position is that any difference in treatment based on sex probably cannot be justified. The regulation which we are considering makes an unambiguous distinction between male and female grooming. The Defendants seek to explain away this difference in treatment by claiming that the difference, although written in terms of male and female, is really based on a difference between the degree of security in existence at the state’s institutions for men and that in existence at the state’s only institution for women. If it were true that the regulation is based on differences in security and if it were found that contraband was not a problem in the lower security areas, then the difference in permissible hair length could be justified. However, this justification would be based on a difference in the security in force at various prisons, not on a difference in the sex of the inmates who are housed there. Although this would be an acceptable rationale, the regulation in no way reflects this underlying reason but simply makes a distinction based on sex. Courts have in other situations looked to the actual enforcement of a challenged statute or regulation in determining whether or not it was constitutionally defective. However, a regulation which is so clearly invalid on its face cannot be saved by proof of a non-discriminatory pattern of enforcement. Such unambiguous regulations should be judged from their face. They nowhere state that they are in force only in maximum security prisons and I am not willing to accept the testimony of a prison official which is contrary to their plain meaning. The regulation exists and the potential for abuse is obvious. The regulation must, in my opinion, be struck. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9751963. Public record. Not legal advice.