Plaintiff, a non-tenured high school teacher, claims that the school board's decision to terminate his employment was actually motivated by disapproval of his beard and his sideburns, rather than by the admittedly sufficient reasons given to him in writing. His complaint having been dismissed on motion, the question presented on appeal is whether an allegation that a school board's employment decision was predicated on an unfavorable reaction to the appearance of an employee makes federal judicial review of that decision necessary.

Plaintiff was employed as a junior high school mathematics teacher for two years. In February of 1971, his principal recommended that he be given a contract for the following year, but at its meeting on March 15, 1971, the school board decided not to renew his contract. He was therefore given a written 'Notice of Dismissal,' containing an explanation of the board's decision as required by the Illinois School Code.1 The stated reasons,2 if true, were both sufficient and permissible in the sense that they did not offend any constitutionally protected interest.

Thereafter, plaintiff requested 'an official closed hearing'; he stated that he would be represented by counsel and by the local association3 at that hearing and that he expected the members of the board to prove their charges against him and to be subject to cross-examination. The board refused to schedule the kind of hearing plaintiff had requested, but did call a special meeting to give him an opportunity to address the board. At that meeting, plaintiff appeared with counsel and a court reporter. After a colloquy lasting about 40 minutes, plaintiff declined to address the board because the defendants refused to conduct the kind of hearing that his counsel insisted was appropriate; the meeting then aborted. Neither the transcript of that meeting, nor the correspondence between the parties, contains any reference to plaintiff's manner of dress, his beard, or his sideburns.

Plaintiff promptly filed suit in federal court claiming that he had been denied procedural due process. While his complaint was pending, the Supreme Court decided Roth and Sindermann.4 Plaintiff then filed an amended complaint which, fairly read, asserts three different theories of recovery. First, plaintiff claims that the reasons given by the board imposed the kind of stigma upon him that required a pretermination hearing; under our decision in Shirck II,5 this claim must be rejected. Second, plaintiff claims that the reasons as stated by the board were untrue and that the board's action was arbitrary in the sense that it was completely unsupported by any acceptable reason;6 this claim is comparable to the 'substantive due process' argument which we recently rejected in Jeffries,7 and is therefore foreclosed by that decision.

The third claim raises an issue which we have not yet addressed squarely. Plaintiff alleges that his dismissal was for a constitutionally impermissible reason because his 'mode of dress and appearance' are 'protected by the Constitution of the United States.'8 Although this claim was not stressed in the district court, it was considered and rejected as insufficient.9 The case is here on appeal from an order dismissing the amended complaint.10

Plaintiff first reminds us that in order to withstand a motion to dismiss, the complaint need only contain 'a short and plain statement of the claim.' Fed.R.Civ.P. 8(a)(2). If the claim is legally sufficient, the office of plaintiff's pleading is merely to 'give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.' Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103, 2 L. Ed. 80. And, of course, 'a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Id. at 45-46, 78 S.Ct. at 102.

Our first task, therefore, is to identify the claim which plaintiff is asserting. He has correctly pointed out in his brief that there are least three different versions of the facts that might reasonably be supported by the evidence under the allegations of the amended complaint.11 It is important to note, however, that the alternatives he describes all raise essentially the same claim. To identify that claim as accurately as possible, and with deference to the rule that we must assume that plaintiff can prove a set of facts which will support that claim, it is important to put to one side certain claims that plaintiff is not advancing.

He is not claiming that his mode of dress and his Vandyke beard were intended to convey a specific message comparable to that signified by the black arm bands protected by the rule of Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731.12 If that were plaintiff's claim, it certainly would have been disclosed in the pleadings, the abortive meeting with the school board, or in the briefs or argument here.13 Nor is plaintiff claiming that he was dismissed for speaking out on an issue of public importance. Cf., Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811; Donahue v. Staunton, 471 F.2d 475 (7th Cir. 1972); or because of his race, religion, or political affiliation cf. Illinois State Employees Union v. Lewis, 473 F.2d 561 (7th Cir. 1972). Plaintiff does not suggest that his mode of appearance was connected with his racial or ethnic identity. See Justice Field's opinion in Ho Ah Kow v. Nunan, 12 F. Cas. 252 (No. 6,546) (C.C.D.Cal.1879).14 Finally, plaintiff does not claim that he was deprived of equal protection of the laws by the enforcement of a rule which arbitrarily discriminated between members of different races or between males and females. Cf., Crews v. Cloncs, 432 F.2d 1259, 1266 (7th Cir. 1970).

Plaintiff's claim is that his 'mode of dress and appearance,' simpliciter, are protected by the Constitution, and that his dismissal was therefore impermissible.

We, of course, have no precise understanding of how plaintiff actually dresses or appears. As he notes in his brief, he may, on the one hand, wear well pressed three-piece blue suits and have sideburns at the middle of his ears and a neatly clipped Vandyke beard; or alternatively, he may wear t-shirts and faded levies and have an unkempt beard and sideburns which substantially cover his entire face.15 He seems to assume that these two alternatives would raise different constitutional claims. We disagree.

We think we must assume that plaintiff's appearance is such that he in good faith believes that it is appropriate for classroom purposes, but that the members of the school board nevertheless considered it unacceptable. We must also assume that if we were to resolve the difference of opinion between the plaintiff and the school board, we would conclude with plaintiff that his appearance and style of dress are neither offensive nor objectionable. The question we must decide is whether this is the sort of determination that federal judges have the power and duty to make.

The constitutional issue has two aspects: first, whether an individual's interest in appearing as he pleases is an interest in 'liberty' within the meaning of the Due Process Clause of the Fourteenth Amendment,16 and second, assuming that it is, whether a refusal or discontinuance of public employment motivated by disapproval of an individual's appearance, is a deprivation of that interest. We evaluate these two aspects separately, but our ultimate judgment rests upon an appraisal of both.

Unquestionably, individual choice in matters of hair style, dress, and overall appearance can reasonably be characterized as an aspect of freedom or 'liberty.' Sometimes the choice reflects a religious conviction, the expression of a political faith, a national or family heritage, or simply a personal interest in projecting a special image or character. The word 'liberty' is not demeanded by construing it to include a right to appear as one pleases.

Prior to the Supreme Court's decision in Ham v. South Carolina, 409 U.S. 524, 93 S. Ct. 848, 35 L. Ed. 2d 46, decisions of this court and others had assumed that 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.'17 It is difficult, and perhaps impossible, to reconcile that assumption with the underlying rationale of the Court's holding in Ham.

In that case the State trial judge had refused to interrogate prospective jurors about their possible prejudice against the defendant because of his race or because he wore a beard. On the record before it, the Supreme Court therefore assumed, for the purpose of its decision, that some members of the jury might have harbored a prejudice against blacks or a prejudice against people with beards. The former assumption invalidated the defendant's conviction; for he had a federal constitutional right not to have the State-- acting through its jurors-- treat him less favorably than others simply because of his race. On the other hand, such differential treatment because he wore a beard was constitutionally indistinguishable 'from a host of other possible similar prejudices.'18 Implicitly Ham must hold either that there is no constitutional right to appear as one pleases, or at least, that a person has not been deprived of liberty simply because a State permits his appearance to prejudice his defense to criminal charges. It would, of course, be unwise to read too much into the Ham opinion, since the discussion of the second issue was not necessary to the decision. This much, however, seems quite clear: if one's interest in appearing as he chooses is a constitutionally protected interest in liberty, it is of a much lesser magnitude than a 'fixed star in our constitutional constellation.'19

Even if we assume for purposes of decision that an individual's interest in selecting his own style of dress or appearance is an interest in liberty, it is nevertheless perfectly clear that every restriction on that interest is not an unconstitutional deprivation.

From the earliest days of organized society, no absolute right to an unfettered choice of appearance has ever been recognized; matters of appearance and dress have always been subjected to control and regulation, sometimes by custom and social pressure, sometimes by legal rules. A variety of reasons justify limitations on this interest. They include a concern for public health20 or safety,21 a desire to avoid specific forms of antisocial conduct,22 and an interest in protecting the beholder from unsightly displays.23 Nothing more than a desire to encourage respect for tradition, or for those who are moved by traditional ceremonies, may be sufficient in some situations.24 Indeed, even an interest in teaching respect for (though not necessarily agreement with) traditional manners, may lend support to some public grooming requirements. Therefore, just as the individual has an interest in a choice among different styles of appearance and behavior, and a democratic society has an interest in fostering diverse choices, so also does society have a legitimate interest in placing limits on the exercise of that choice.

Although we must assume that some impairment of the individual interest in appearing as one pleases is plainly appropriate, we may also assume that some restrictions would be so extreme that they would readily be condemned as unconstitutional deprivations. In this case, however, we are not confronted with the question whether a specific form of dress or exposure may be required25 or totally prohibited.26 Nor do we have a case such as Ham v. South Carolina, supra, in which a State's determination of an individual's guilt or innocence may be affected by the jury's unfavorable reaction to his appearance. If we assume that this case does involve a deprivation of liberty, the deprivation is one which formerly would have been denigrated as nothing more than the waiver of a privilege rather than the impairment of a right.27

The impairment of the individual's interest in selecting his own life style which results from the employment decision of one local school board is much less significant than the deprivations of liberty which have been condemned in other cases.28 The unavailability of a teaching position in one School District is less serious, for example, than the deprivation of an opportunity to obtain an education, cf., Crews v. Cloncs, supra, or the complete exclusion from a profession, cf. Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 77 S. Ct. 752, 1 L. Ed. 2d 796, or from any public employment in the state, cf., Wieman v. Updegraff, 344 U.S. 183, 73 S. Ct. 215, 97 L. Ed. 216, or even from such employment while one political party is in power, cf. Illinois State Employees Union v. Lewis, supra. If the facts are as plaintiff has alleged, he is a competent teacher and the board's disapproval of his appearance is wholly irrational. On that hypothesis, it is not unreasonable to assume that the availability of other teaching opportunities will make it unnecessary for him to make any basic change in his chosen appearance.29

In sum, the constitutional interest which plaintiff seeks to vindicate is not of the first magnitude and the impairment of that interest is a relatively minor deprivation at best.30 The question we must decide, however, is whether plaintiff's allegations have nevertheless raised a constitutional issue which should only be decided after an evidentiary hearing.

We assume that this case arises out of an honest disagreement between a teacher and the members of a locally elected school board as to what mode of dress and appearance is appropriate for a junior high school classroom. Were we members of the school board, we have no hesitation in saying that we would regard dress and hair style as matters of relatively trivial importance on any scale of values used in appraising the qualifications of a teacher.31 But the question is not how we would act as members of a school board. The question for us to decide is whether the Federal Constitution commands us, as federal judges, to review a decision which board members have allegedly made on the basis of the plaintiff's appearance.

If this is a task the Constitution requires us to perform, two alternative procedures are feasible. We might hold that the mere allegation that plaintiff's appearance was a factor in the defendant's decision is sufficient to require an evidentiary hearing.32 Alternatively, we may hold that unless plaintiff alleges an additional factor, such as a purpose to discriminate against a racial or political group, or perhaps a religious justification for his form of dress, we will not review a school board decision that involves nothing more than a difference of opinion on a question of style.

The first approach would lead the federal judiciary into unprecedented participation in local affairs. For if plaintiff's theory is valid, it cuts across the entire spectrum of public employment. Any personnel decision which is arguably affected by an unfavorable reaction to the appearance of an employee, or of a job applicant, would be a potential source of constitutional litigation. If the considerations of procedural fairness involved in Board of Regents v. Roth, supra, were insufficient to persuade the Supreme Court that federal judicial review of a school board decision was warranted, the interests at stake in this case can hardly justify such a result.

When the State selects the personnel through whom it deals with the public, it undoubtedly may consider an individual's appearance as one of the factors affecting his suitability for a particular position. Logically, one might argue that no significance should be attached to the image projected by the appearance of a public official-- a pilot should be able to land an airplane as well in dirty overalls as in neat uniform, and a teacher should be able to explain the pythagorean theorem as well in a t-shirt as in a three-piece suit-- but the public's reaction to an official, and a student's reaction to his teacher, is undoubtedly affected by the image he projects.

If a school board should correctly conclude that a teacher's style of dress or plumage, has an adverse impact on the educational process, and if that conclusion conflicts with the teacher's interest in selecting his own life style, we have no doubt that the interest of the teacher is subordinate to the public interest. We must assume, however, that sometimes such a school board determination will be incorrect. Even on that assumption, we are persuaded that the importance of allowing school boards sufficient latitude to discharge their responsibilities effectively-- and inevitably, therefore, to make mistakes from time to time-- outweighs the individual interest at stake.33 We do not imply that diversity and individualism among members of the teaching profession is less desirable than conformity; the critical point is that each choice between conformity and diversity is itself affected by a variety of factors, and local school boards need the freedom to make diverse choices for themselves.

If such choices must be tested against a federal constitutional standard, perhaps Vandyke beards and three button suits-- or possibly shaven heads and t-shirts-- will be permissible for all teachers throughout the nation. In the name of maximizing the individual teacher's freedom to appear as he pleases, such a constitutional rule would minimize the areas of choice available to local school boards in determining the impact of teacher appearance on the educational process, and on the associational interests of the children for whose education they are responsible.

Although the interest of children in associating with persons of their choice is, of course, severely limited by both their parents and the State, we should not ignore the fact that they do have a valid interest in not being compelled to associate with persons they or their parents consider objectionable. In the classroom, since their presence is compelled, they necessarily must look to the school board for protection of this interest. For this reason, it is appropriate for the school board, elected by the local community, to select the people with whom it wants the minors of the community to associate as teachers. We do not necessarily approve the decision this school board, or any school board, might make; as in the case of the content of the speech in Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430, we merely hold that as long as no greater interest than that involved in this controversy is at stake, the decision is one that the school board is entitled to make.

In deciding whether the Federal Constitution commands us to review school board action allegedly predicated on plaintiff's appearance, we must necessarily identify the source of the standards by which to test such school board decisions.34 If we accept the premise that the board may consider appearance and mode of dress as a factor affecting the employment decision-- indeed, plaintiff seems to agree that this factor is permissible provided that it is appraised in a reasonable way-- we would then be forced to decide when a grooming requirement exceeded constitutional limits and when it did not. The concept of 'rationality' would be our only guideline;35 that concept, so often criticized in discussions of substantive due process, is, we believe, too indefinite to justify the substitution of out judgment for that of a local board on a question of manners.

We therefore hold that even if the individual interest in one's appearance may be characterized as an interest in liberty, the denial of public employment because the employer considers the applicant's appearance inappropriate for the position in question, does not in and of itself represent a deprivation that is forbidden by the Due Process Clause.

Affirmed.