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63 Fordham L. Rev. 1203 (1994-1995)
Suits for the Hirsute: Defending against America's Undeclared War on Beards in the Workplace

handle is hein.journals/flr63 and id is 1217 raw text is: NOTES SUITS FOR THE HIRSUTE: DEFENDING AGAINST AMERICA'S UNDECLARED WAR ON BEARDS IN THE WORKPLACE JAMES M. MALONEY* INTRODUCTION If little can be found in past cases of this Court or indeed in the Nation's history on the specific issue of a citizen's right to choose his own personal appearance, it is only because the right has been so clear as to be beyond question. -Justice Thurgood Marshall1 Notwithstanding the attempt at humor in the above title, the right of the people to be free from government restrictions on such per- sonal decisions as whether to wear a beard gives rise to a set of rather serious constitutional questions.2 These questions, including the most basic (where in the Constitution this right is to be found), have been addressed neither adequately nor consistently during the nearly two decades following Justice Marshall's pronouncement, articulated in his dissent in Kelley v. Johnson,3 that the right is so clear as to be beyond * I would like to thank some of those whose input has helped to shape this final product. My wife, Debra R. Comer, Ph.D., provided the verbal juxtaposition that allowed the current title to replace my original Hair Today, Gone Tomorrow. There is, after all, a hierarchy of puns, despite their status as the lowest form of hu- mor. I am also grateful to those who, in advising me in one fashion or another that clean-shaven is preferable, have helped to focus my attention on a relatively minor matter of personal liberty that is all too often overlooked, both literally and figuratively. 1. Kelley v. Johnson, 425 U.S. 238, 251 (1976) (Marshall, J., dissenting). Justice Marshall's dissenting opinion went on to note that [h]istory is dotted with instances of governments regulating the personal appearance of their citizens. For instance, in an effort to stimulate his countrymen to adopt a modem lifestyle, Peter the Great issued an edict in 1698 regulating the wearing of beards throughout Russia. Id. at 253 n.4. It is inconceivable to me, Justice Marshall concluded, that the Constitu- tion would offer no protection whatsoever against the carrying out of similar actions by either our Federal or State Governments. Id. at 254 n.4. 2. See New Rider v. Board of Educ. of Indep. Sch. Dist. No. 1, 414 U.S. 1097, 1098 (1973) (Douglas, J., dissenting from denial of certiorari) (noting that regulations of expressive aspects of personal appearance present an issue of particular personal interest to many and of considerable constitutional importance). 3. 425 U.S. 238 (1976). Kelley declined to find a right of police officers to be free from departmental grooming standards that restricted length of hair and banned beards, using a substantive due process analysis. Id. at 244-45. The Court, however, did not analyze any First Amendment claims. See id. at 249 (The regulation chal- lenged here did not violate any right guaranteed respondent by the Fourteenth Amendment to the United States Constitution . . . .) (emphasis added); id. at 251 n.2 (Marshall, J., dissenting) (While the parties did not address any First Amendment issues in any detail in this Court, governmental regulation of a citizen's personal ap- 1203