norml21 - Page 39
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the Ninth Amendment to have her own child with her regardless of
its ageo '_ 401 Fo Supp. at 767_
In Bish___ v_o!aw, 450 Fo2d 1069 (Sth Cir. 1971), the court
upheld the right of the individual to govern his personal appear-
ance, stating that the acceptance of the dress code by the
majority of students and the community does not justify the
infringement. The court continued_ emphasizing that '_toleration
of individual differences, is basic to our democracy_ whether
those differences be in re!igionf politics, or life-style." 450
Fo2d at 1077. The court appears to have adopted the standard
that the activity need not be engaged in by the majority, that it
may in fact be offensive to the majority_ but so long as its
impact upon the fundamental rights of others is de minimis, the
burden of proof is upon the state to show an evident need of the
community (compelling state interest) to justify its
infringement. This standard was likewise professed by the Court
in Richards v. Th_rston, 424 F.2d 1281 (Ist Ciro 1970) in which
the issue of whether a right need be fundamental to fall within
the protection of the due process clause was discussed° Although
the court declined to adopt a Ninth Amendment rationale and chose
instead a due process basis for overruling the actions of the
school boards the issue is of equal importance to Ninth Amendment
analysis and depicts the solicitude of the court to protect an
individual's daily activities:
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