Biggs, Adams, and Rosenn, Circuit Judges. Biggs, Circuit Judge (concurring and dissenting).
This case presents the perplexing question whether a student may be suspended because the length of his hair does not conform to the standards prescribed by the local school board.*fn1
Plaintiff-appellant, Jerald Gere, transferred from New York and entered the tenth grade of Blue Ridge High School in New Milford, Pennsylvania, in September, 1969. The principal of the school had previously informed parents and students that certain rules pertaining to dress and appearance had been adopted. Included was a regulation concerning hair length which differed slightly from that challenged on this appeal in that it did not set a specific maximum length but relied on rather vague, general standards of neatness and good grooming.
Some time after the school year 1969-70 commenced, Gere permitted his hair to grow to shoulder length and grew a goatee. Both actions violated the thenexisting rule. For the remainder of the year, Gere's long hair caused disturbances to the extent that fellow-students approached the principal on several occasions with substantial complaints. In each case, action by the principal was required to alleviate the condition of unrest or turmoil in the school. Because the length of Gere's hair continued to exceed the norm set out in the regulation and because Gere refused to cut his hair, the principal suspended him on March 19, 1970. This step was ratified by the Board of Education on March 24th.
Gere then instituted suit, Civil No. 70-157, in the District Court seeking to enjoin the enforcement of the rule regulating the length of hair. Pending an adjudication of his claim, Gere was permitted to return to classes for the remainder of the school year.*fn2
During the Summer of 1970, various components of the Blue Ridge High School -- faculty, administrative staff, and student council -- drafted and approved a new dress code which included the regulation reproduced supra, note 1. The School Board then voted that the code should go into effect for the school year 1970-71. Gere returned to school in September, 1970 with hair reaching his shoulders, in clear violation of the new rule. After refusing to cut his hair, he was again suspended, and has not attended school since. The present lawsuit, Civil No. 70-477, challenging the validity of the hair length regulation was filed shortly after Gere was suspended. The actions were consolidated, and in an able opinion, reported at 320 F. Supp. 852 (M.D.Pa.1970), Judge Nealon held that although Gere's freedom to choose his hair style was a liberty embraced by the Fourteenth Amendment, the freedom was properly limited by a reasonable school board regulation aimed at maintaining an atmosphere conducive to learning. The District Court accordingly entered judgments for the defendants. Gere appeals only from the judgment in Civil No. 70-477.
Neither in the District Court nor on this appeal does Gere contend that the challenged regulation interfered with an exercise of his First Amendment rights.*fn3 Rather, Gere states that he wears long hair because he "just like[s] it." He argues that such a preference constitutes a protected liberty within the meaning of the Fourteenth Amendment which may not be abridged without due process of law.*fn4
Although the parties in this case have not questioned the power -- jurisdiction -- of the federal courts to adjudicate this matter, the question of jurisdiction is always at issue, and we may not proceed to the merits of the dispute without first having the power to adjudicate. In the view expressed by the late Mr. Justice Black, acting as a Circuit Justice in Karr v. Schmidt, 401 U.S. 1201, 91 S. Ct. 592, 27 L. Ed. 2d 797 (1971), and by the concurring opinion in this case, federal courts lack the power to decide hair length controversies which implicate matters of local school board rules. With this proposition, we respectfully disagree.
Since 1877, the Supreme Court has instructed the lower federal courts that federal question jurisdiction is to be determined from the pleadings submitted by the plaintiff. Gold-Washing & Water Co. v. Keyes, 96 U.S. 199, 24 L. Ed. 656 (1877). Gere, in his complaint, asserts federal jurisdiction under 28 U.S.C. §§ 1343(3), (4). The applicable portion of Section 1343 reads:
"The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
"(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;"
The leading case interpreting this provision is Hague v. C.I.O., 307 U.S. 496, 59 S. Ct. 954, 83 L. Ed. 1423 (1939). The tribunal there was confronted with the difficult question whether a federal court had jurisdiction as a result of § 24(14) of the Judicial Code [now 28 U.S.C. § 1343(3)] in a suit brought under § 1 of the Act of 1871, R.S. § ...