# Ham v. South Carolina/Concurrence-dissent Douglas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurrence/Dissents Douglas Marshall
[p529] MR. JUSTICE DOUGLAS, concurring in part and dissenting in part.
I concur in that portion of the majority's opinion that holds that the trial judge was constitutionally compelled to inquire into the possibility of racial prejudice on voir dire. I think, however, that it was an abuse of discretion for the trial judge to preclude the defendant from an inquiry by which prospective jurors' prejudice to hair growth could have been explored.
It is unquestioned that a defendant has the constitutional right to a trial by a neutral and impartial jury. Criminal convictions have been reversed when the limitations on voir dire have unreasonably infringed the exercise of this right. Aldridge v. United States, 283 U.S. 308. Such reversals have not been limited to incidents where the defendant was not precluded from inquiring into possible racial prejudice. In both Morford v. United States, 339 U.S. 258, and Dennis v. United States, 339 U.S. 162, defendants were held to have the right to inquire into possible prejudices concerning the defendants' alleged ties with the Communist party. In Aldridge v. United States, supra, at 313, this Court made it clear that voir dire aimed at disclosing "prejudices of a serious character" must be allowed.
Prejudices involving hair growth are unquestionably of a "serious character." Nothing is more indicative of the importance currently being attached to hair growth by the general populace than the barrage of cases reaching the courts evidencing the attempt by one segment of society officially to control the plumage of another. On the [p530] issue of a student's right to wear long hair alone there are well over 50 reported cases, Olff v. East Side Union High School, 404 U.S. 1042. In addition, the issue of plumage has surfaced in the employment-discrimination context, Roberts v. General Mills, Inc., 337 F.Supp. 1055 (ND Ohio); Conard v. Goolsby, 350 F.Supp. 713 (ND Miss.), as well as the military area, Friedman v. Froehlke, 5 S.S.L.R. 3179 (Mass.).
The prejudices invoked by the mere sight of nonconventional hair growth are deeply felt. Hair growth is symbolic to many of rebellion against traditional society and disapproval of the way the current power structure handles social problems. Taken as an affirmative declaration of an individual's commitment to a change in social values, nonconventional hair growth may become a very real personal threat to those who support the status quo. For those people, nonconventional hair growth symbolizes an undesirable lifestyle characterized by unreliability, dishonesty, lack of moral values, communal ("communist") tendencies, and the assumption of drug use. If the defendant, especially one being prosecuted for the illegal use of drugs, is not allowed even to make the most minimal inquiry to expose such prejudices, can it be expected that he will receive a fair trial?
Since hair growth is an outward manifestation by which many people determine whether to apply deep-rooted prejudices to an individual, to deny a defendant the right to examine this aspect of a prospective juror's personality is to deny him his most effective means of voir dire examination.