Nine Stories of Baby Ninths: Five—Idaho Longhair
[This is the fifth in a series of nine posts on nine stories of how Baby Ninth Amendments made a difference in real cases. They’re part of the lead-up to the publication of the book Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters.]
Chris Zachary Murphy just wanted to wear his hair long. A group of classmates at Highland High School in Pocatello, Idaho, had other plans. According to newspaper reports of the time, they grabbed him and forcibly cut his hair on a couple of occasions. You’d think that the school would defend Chris from this outrageous behavior. Instead, it punished him. Yet, in March 1969 the vice-principal, Mr. Evans, called Chris to his office and ordered him to get his hair cut or be suspended. Chris refused and Evans followed through.
And so began the tale of Murphy v. Pocatello School District. A story where a Baby Ninth—and the actual Ninth Amendment!—ensured the right of students to wear their hair long. And a quite precocious teenager had a few fights along the way.
Out of the car longhair!
We all know the story of the cultural tumult of the late 1960’s. The music, the Vietnam War, the anti-war movement, the civil rights movement, the assassinations, hippies, Yippies, etc. One of the less-dramatic—but still quite memorable—changes of the time was men’s hairstyles growing longer. From the crew cuts of the 50’s to Beatles cuts to the ubiquitous long hair of the ‘70s, men’s hair elongated in a hurry.
Too much of a hurry for many school officials. An interesting footnote of legal history is the bevy of challenges to school style codes of the time, as principals and school boards wanted to keep the decorum that they felt short hair for men instills while those young men and their parents claimed this violated constitutional rights.
Today these cases seem laughable—indeed they quickly were overtaken by the wave of change “the ‘60s” ushered in. But for a few years both federal and state courts were a barber shop of challenges to public school hair regulations. (The opinion in Chris Murphy’s case has a great summary of them if you’re curious.)
You’d think that the hills of eastern Idaho would be exempted from this business. Instead, they were right in the thick of it.
Chris, and his father John C. Murphy as his guardian (and at the time an assistant professor at Idaho State University, it seems in microbiology), challenged his suspension in state court, where the judge ruled against him. They then appealed to the Idaho Supreme Court.
The state supreme court’s opinion has a number of facts about what happened, but some newspaper articles of the time flesh the story out as well, including a letter to the editor from Chris’s father that was printed in the Idaho State Journal on June 8, 1969.
From these sources it appears that Chris and a few other students had been trying to wear their hair “long” (it’s a bit unclear how long was too long, but to the color seemed to qualify) for a while but a combination of forces tried to stop them.
One was the other students mentioned above—essentially bullying, as it seems male longhair was still very much not something the popular crowd did. The other force was the school itself, under its style code. But there’s a hint from John Murphy’s letter to the editor that there was something more going on. He alludes to an incident a year before where Chris asked a question of a colonel who spoke at the school and he was then “ridiculed in front of his classmates, thoroughly humiliated, completed degraded, accused of defacing the American Flag, and threatened with a beating by a counselor.” John Murphy claims he then insisted the school investigate the incident but it went nowhere.
Thus, it being 1968 at the time, perhaps Chris made a statement about the Vietnam War that the colonel—and school officials—took offense to? This could have contributed to the persecution of him and his “longhairs.” To add insult to injury, his father said that Chris did not graduate in the spring of 1969 as he should have (the litigation was ongoing) and that at the graduation ceremony the principal, Lionel Bowser, discussed “the subject of long hair during his speech” which was “exceeded in it’s [sic] vulgarity only by the base action of the parents in the audience who applauded Mr. Bowser’s remarks.”
(Giving the story additional Idaho flavor, the letter also states that Chris was a bagpipe player for the school band and had traveled the state playing for various audiences.)
Ninth Amendment justice
His class’s graduation ceremony may have come and gone, but Chris and his father kept fighting their appeal. Indeed, they even received some help from over in Boise (over two hundred miles away—Idaho’s a big place) where a high school senior started a “Committee to Defend Chris Murphy,” to help pay for his legal fees.
And then, in February 1971, the court ruled 3-2 in his favor. The opinion was a detailed summary of what had happened to Chris and where the case fit into the “longhair litigation” of the time. The majority seemed incensed at Chris’s treatment, especially in light of the bullying he had received, and accepted the conclusion that simply having long hair does not impede any pedagogical or safety interest the school might have.
This wasn’t long after Tinker v. Des Moines Independent Community School Dist., the famous student-speech-armband-protest case. And you could see a court ruling for Chris under Tinker and the First Amendment. This might be particularly true with the backstory of Chris asking that colonel a question, although that fact is absent from the opinion. However, although it mentioned Tinker and although it noted that many other “long hair litigation” decisions had rested on free speech grounds, the court thought the wearing of long hair wasn’t close enough to the core of the First Amendment to warrant its protection. So how did the court rule in Chris’s favor? Procedural due process? Substantive due process? Equal protection?
None of those. Although it gave a nod to substantive due process and Justice Douglas’s ruling in Griswold v. Connecticut, the court thought the Ninth Amendment best protected Chris’s right to wear his hair long:
What is clear from an examination of the history and origin of the Ninth Amendment is that the absence of a specific constitutional provision dealing with the rights of privacy, personal taste, the right to be left alone, and the like, does not compel the conclusion that no such right exists. On the contrary, the opposite conclusion is compelled.
The court also based its ruling on the Idaho Constitution’s Lockean Natural Rights Guarantee and its Baby Ninth Amendment, article I, secs. 1 & 21. Yet, it provided absolutely no analysis of these provisions, simply stating that under them and the Ninth Amendment they protected the right to wear one’s hair long.
The majority could have saved itself a lot of criticism if it had said more here. Very recently the Murphy precedent came up at the Idaho Supreme Court in an abortion case, which I discussed on the blog. The court majority interpreted the Baby Ninth to not substantively protect rights in a manner I very much disagree with. Yet, it was easy for the majority to steamroll over the Murphy precedent because of how it said next to nothing about the state constitution. This should be a lesson to courts who rule on state constitutional grounds—state constitutions need analysis too.
It’s unclear from the materials I’ve found what happened to Chris Murphy after the appeal. In one news article it appeared he might have taken the GED and at this point it’s unlikely he would have reenrolled at the high school—two years after he should have graduated. Further, an amusing part of the story is that during the appeal, in August 1970, the school district actually lifted its ban on male long hair. The superintended said it was “catching up to the times” and that it was now so common that it wasn’t a distraction.
A protester for all seasons
One other thing happened during the appeal. In February 1970 police arrested Chris on obscenity charges. Why? Reported the Idaho Statemen, “Officers said the 19-year-old Murphy, who now has shoulder-length hair, was carrying a sign bearing an obscene word.” He “was picketing the federal building here to protest treatment given defendants in the Chicago Seven conspiracy trial.” (It appears he also was involved in protest of the draft a month later, where he and his father claimed he was harassed by the police.) And at the plea hearing “Murphy pleaded innocent. . . . Justice of the Peace Wayne Loveless said a trial date for the misdemeanor charge will be set in the near future. But Loveless told Murphy he will be required to cut his hair before the trial.”
It’s unclear whether he did cut his hair, but the case when to trial in August 1970 and he lost. The judge ruled that the “four-letter word” in question “in not quite accepted in our society today.” (No word whether Abbie Hoffman ever sent Chris a thank you.)
The record doesn’t reveal what “four-letter word” was on Chris’s sign. But, as many readers know, less than a year later, on February 22, 1971, in Cohen v. California, the Supreme Court ruled that preventing the wearing of a jacket that said “Fuck the Draft” to a courtroom violated the First Amendment. It appears Chris Murphy was a teenager quite ahead of his time.
Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.