A trial over a the long hair of a middle school student took place in Alaska in 1972–Breese v. Smith.

Michael and his father Russell Breese stood up against Elmer C. Smith, the principal of Main Junior High School, after Michael was threatened with suspension if Michael did not comply with an unwritten regulation against long hair promulgated three years earlier by the principal. Male students’ hair could “not be down over the ears, over the eyes,… [or] over the collar,” according to the regulation. The trial also involved George E. Taylor, superintendant of Fairbanks North Star Borough School District, who Smith turned to for authority to expell Michael Breese. On Sept. 21 Michael was expelled. Sept. 22 a superior court injunction forced an Oct 7. School Board hearing on the merits of the expulsion (evidence informing about the relation between hair lenth and undesirable characteristics/behavior in school students). An Oct 15. superior court hearing found the regulation reasonable (it did not unconstitutionally interfere in a citizens rights) and dissolved the temporary restraining order.

The ruling was appealed by the Breeses. When the case went to its final trial at the Supreme Court, the finding was that Michael’s rights to privacy guaranteed by the Alaska state constitution had been violated. Long hair was protected by law. The court did not find relevant language to deal with the matter in the U.S. Constitution, and previous cases dealing with the matter of hair styles lacked consensus (several theories based on several Constitutional amendments had been argued). Since the court lacked U.S. Constitutional resources to use as a basis, it turned to the state constitution, which states (basically, an incorporation of the affirmations of the Declaration of Independence),

“…All persons have a natural right to life, liberty, the pursuit of happiness, and the enjoyment of the rewards of their own industry; that all persons are equal and entitled to equal rights, opportunities, and protection under the law; and that all persons have corresponding obligations to the people and to the State.”

The Alaska constitution also guarantees (article VII, section 1) a right to public education to all Alaskan children. The court set out to decide whether the hair length regulation was valid on the basis of whether Breese had a constitutional right to his hairstyle. The earlier (trial) court had found no express constitutional guarantee of the right to wear long hair at school and also found that such a right could not be grounded in any “right to privacy.” The opinion of Justice Rabinowitz was that,

“Given this backdrop of constitutional interpretation we begin with the established premise that children are possessed of fundamental rights under the Alaska constitution. Moreover, we have previously stated that children’s constitutional rights will not be denied in deference to governmental benevolence or popular social theories… .

“We hold that under article I, section 1 of the Alaska constitution’s affirmative grant to all persons of the natural right to ‘liberty,’ students attending public educational institutions in Alaska possess a constitutional right to wear their hair in accordance with their personal tastes… .

“No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley, ‘The right to one’s person may be said to be a right of complete immunity: to be let alone’… .”

In his notes on the opinion, Justice Rabinowitz cited Justice Douglas’ interpretation of “liberty” in Olff v. East Side Union High School Dist., who stated, “the word “liberty” is not defined in the Constitution. But … it includes at least the fundamental rights “retained by the people”… . One’s hair style, like one’s taste for food, or one’s liking for certain kinds of music, art, reading, recreation, is certainly fundamental in our constitutional scheme a scheme designed to keep government off the backs of people.” Rabinowitz continued,

“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. Yet ‘liberty’ seems to us an incomplete protection if it encompasses only the right to do momentous acts, leaving the state free to interfere with those personal aspects of our lives which have no direct bearing on the ability of others to enjoy their liberty…

“We are in accord with the observation made by the court in Bishop v. Colaw that ‘personal freedoms are not absolute; they must yield when they intrude upon the freedom of others.’

“Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling” … .

“We think the compelling interest standard has merit and should be adopted in cases where a person’s individual liberty, as guaranteed by the Alaska constitution, allegedly has been encroached upon… Once a fundamental right under the constitution of Alaska has been shown to be involved and it has been further shown that this constitutionally protected right has been impaired by governmental action, then the government must come forward and meet its substantial burden of establishing that the abridgment in question was justified by a compelling governmental interest.

The ruling found that in disagreements of this kind, the onus should be not on the complainant, but rather on the government, so as to afford “protection against attempted infringement” of constitutional rights–not just rely on the “subjective elements of motivation and good faith of school administrators.” This decision about where the onus should be placed was disagreed with by concurring Justice Irwin, who believed that the burden of showing the unreasonableness of a rule to the purpose for which it was promulgated should rest with the student.

The court therefore found that Breese did have a constitutional right to wear his hair long. In looking at whether the state had a compelling interest in keeping hair short in schools, the courtheld off from expressing exaclty what evidence would be necassary to establish such an interest, but only concluded that the burden of showing such a justification had not been met in this case.The court, therefore, found no justification for the denial of Breese’s rights.

The court reversed and remanded the superior courts judgement.

*     *     *     *     *

The hair length issue in Breese v. Smith points out an area of civil liberties lacking protection under the U.S. Constitution: protection of individuals rights to decide their own appearance.

When argueing a person’s right to their appearance, proponents have tried a vareity of federal constitutional theories as the source of such rights. There is no consensus about what rationale is appropriate. Here are some examples of rationales that have been forwarded and have been used in various trials to successfully protect rights from infringement: The First amendment rationale has been called the right to freedom of expression, but it does not offer language that encompasses the issue of personal appearance or property.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The ninth Amendment rationale is the Section 1 “Equal Protection Clause,” which deals with property and liberty, but only as it is affected using “due process of law.”

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Fourteenth amendment’s Section 1 “due process clause” similarly deals with liberty and property–as well as privileges and immunities–but only where legislation infringes upon them and again dealing with them as affected by “due process of law.” It was used in Brown v. Board of Education (1954) (racial desegregation in schools) and other discrimination cases. The Fourteenth Amendment was also used in Griswold v. Connecticut (stuck down the banning of contraceptives) and Roe v. Wade (established a woman’s right to abortion). In Griswold, Justice Blackmun located within the “Due Process Clause” a “right to privacy,” although this decision was very controversial.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In Richards v. Thurston–already cited by Rabinowitz–the First Circuit court said this of the Constitutional grounds for upholding students rights to determine their personal appearance:

“We think the Founding Fathers understood themselves to have limited the government’s power to intrude into this sphere of personal liberty, by reserving some powers to the people. The debate concerning the First Amendment is illuminating. The specification of the right of assembly was deemed mere surplusage by some, on the grounds that the government had no more power to restrict assembly than it did to tell a man to wear a hat or when to get up in the morning. The response by Page of Virginia pointed out that even those “trivial” rights had been known to have been impaired to the Colonists’ consternation but that the right of assembly ought to be specified since it was so basic to other rights. The Founding Fathers wrote an amendment for speech and assembly; even they did not deem it necessary to write an amendment for personal appearance. We conclude that within the commodious concept of liberty, embracing freedoms great and small, is the right to wear one’s hair as he wishes.”

By Day Blakely Donaldson


Alaskan Government