United States of America U.S.A. 4

Federal Supreme Court Kelley, Commissioner, Suffolk County Police Department v. Johnson

in International Labour Law Reports Online
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United States of America U.S.A. 4

Federal Supreme Court Kelley, Commissioner, Suffolk County Police Department v. Johnson

in International Labour Law Reports Online


* [Certain footnotes have been omitted and those re- tained renumbered: Ed.]

1 While it recognized the distinction between citizens and uniformed employees of police and fire departments, the Court of Appeals stated that the individual's status did not bear on the existence of his right but on whether the right was outweighed by a legitimate state interest....

2 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. Soci- ety of Sisters, 268 U.S. 510, 534-535 (1925); the interest of citizens in traveling abroad, Kent v. Dulls, 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). 3 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 constitu- tionality. See, e.g., King v. Saddleback Junior Collage 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 Consti- tution may offer no protection at all against comprehensive regulation of the personal appearance of the citizenry at large.

4 history is dotted with instances of governments reg- ulating the personal appearance of their citizens. For instance, in an effort to stimulate his countrymen to adopt a modern lifestyle, Peter the Great issued an edict in 1698 regulating the wearing of beards throughout Russia. W. & A. Durant, The Age of Louis XIV 398 (1963). Anyone who wanted to grow a beard had to pay an annual tax of from one kopeck 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 allow- ed 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, 18 February 1974, p. 22, cowl. 4 (Czech police stop long-haired young men telling them to get hair- cuts) ; id.,'23 July 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., 7 July 1971, p. 22, col. 8 (over 1,000 young men rounded up and given haircuts by South Korean police in what was de- scribed by government officials as a "social purification" campaign); id., 13 October 1970, p. 11, col. 1 (police force more than 1,400 South Vietnamese youths to cut 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.

5 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 uni- formed police officers, has filed a brief as amicus curiae arguing that the challenged regulation is unconstitutional. 6 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 require- ments by wearing a wig with hair of the proper length while on duty. The regulation prohibits the wearning of wigs or hairpieces "on duty in uniform except for cosmetic reasons to cover natural baldness or phsyical disfiguration." ... Thus, while the regulation in terms applies to grooming standards of policemen while on duty, the hair-length pro- vision 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 in- volved and the degree to which they are affected, the appli- cation of a more heightened scrutiny would be appropriate.


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