BRIANNA STEPHENSON v DAVENPORT COMMUNITY
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-1770
___________
Brianna Stephenson, *
*
Plaintiff-Appellant, *
*
v. * Appeal from the United States
* District Court for the
Davenport Community School * Southern District of Iowa.
District; Davenport Community *
School Board; Jim Foy, *
individually; William Rettko, *
individually, *
*
Defendants-Appellees. *
___________
Submitted: October 21, 1996
Filed: April 9, 1997
___________
Before WOLLMAN, LAY, and BRIGHT, Circuit Judges.
___________
BRIGHT, Circuit Judge.
Appellant Brianna Stephenson brings this 42 U.S.C. 1983
action against the Davenport Community School District, its Board,
and two school officials in their individual capacities
(Appellees). Stephenson asserts that appellees forced her to
remove a tattoo pursuant to the District's regulation prohibiting
gang symbols. There is no evidence Stephenson was ever involved in
gang activity and she denies the tattoo is a gang symbol.
Stephenson claims that the regulation is overbroad and vague, that
appellees violated her procedural due process rights, and that the
Board failed to adequately train its personnel.
The district court granted summary judgment for appellees and
Stephenson appealed. We affirm in part and reverse in part.
I. BACKGROUND
The facts in this case, for the most part, are not in dispute.
For purposes of this summary judgment motion, however, any disputed
facts are considered in the light most favorable to Stephenson.
Landreth v. First Nat. Bank of Cleburne County, 45 F.3d 267, 268
(8th Cir. 1995).
In February of 1990, Brianna Stephenson tattooed a small cross
between her thumb and index finger. She was an eighth grade
student in the Davenport Community School District (District) at
the time, and wore the tattoo without incident while enrolled in
the District for the next thirty months. Stephenson intended her
tattoo to be a form of "self expression." She did not consider the
tattoo a religious symbol. She also did not intend the tattoo to
communicate gang affiliation.
Stephenson eventually enrolled at West High School, within the
District, where, despite a learning disability, she worked her way
onto the honor roll and served as a home room representative. Her
report cards characterize Stephenson as "conscientious & diligent"
and a "pleasure to have in class." Jt. App. at 89. Stephenson had
no record of disciplinary problems and was never involved in gang
activity.
While Stephenson attended West High School, gang activity
within the District's schools increased. Students brought weapons
to class and violence resulted from gang members threatening other
students who displayed rival gang signs or symbols. Furthermore,
gang members attempted to intimidate students who were not members
into joining their gangs.
The District worked closely with local police to address these
problems. In August 1992, Superintendent Peter F. Flynn sent a
letter to District parents that included the District's "Proactive
Disciplinary Position K-12." That regulation states that "[g]ang
related activities such as display of `colors,' symbols, signals,
signs, etc., will not be tolerated on school grounds. Students in
violation will be suspended from school and/or recommended to the
Board for expulsion." Jt. App. at 39. No definition of "[g]ang
related activities" or "`colors,' symbols, signals, signs, etc.,"
id., exists in the regulation.
On August 31, 1992, Stephenson visited Counselor Wayne
Granneman to discuss her class schedule. Granneman noticed
Stephenson's tattoo, considered it a gang symbol, and notified
Associate Principal Jim Foy. Foy consulted Police Liaison Officer
David Holden who, based on a drawing and description of the tattoo,
stated his opinion that it was a gang symbol. Aside from the
tattoo, there was no evidence that Stephenson was involved in gang
activity and no other student complained about the tattoo or
considered it a gang symbol.
Foy phoned Stephenson's mother and informed her that
Stephenson was suspended for the day because her tattoo was gang-
related. Stephenson's parents met with Foy the following morning
and agreed that Stephenson would continue to attend school on a
temporary basis with the tattoo covered. Foy informed Stephenson's
parents that she needed to remove or alter the tattoo, otherwise
the school would initiate disciplinary procedures and suspend
Stephenson for ten days. Stephenson chose not to alter the tattoo
because she did not want a larger tattoo and feared school
administrators or police would also classify it as a gang symbol.
She then met with a tattoo specialist who advised her that laser
treatment was the only effective method to remove the tattoo.
On September 9, Officer Holden examined Stephenson's tattoo
and confirmed his earlier opinion that it was a gang symbol.
Holden contacted another officer who, without viewing the tattoo,
also considered it a gang symbol.
Principal William Rettko held another meeting on either
September 9 or 10(1) with Stephenson, her mother, and Foy. At that
meeting, the school officials granted Stephenson an extension until
September 25 to remove the tattoo. School officials warned Mrs.
Stephenson that if Stephenson did not remove the tattoo by
September 25, the School "would suspend her at that time and
recommend to the Advisory Council she be excluded from school by
the Davenport Board of Education." Jt. App. at 46.
On September 25, Stephenson and her mother again met with Foy
and Rettko and confirmed that she was completing laser treatment
for removal of the tattoo later that day. The doctor performing
the removal "burnt through four layers of . . . skin [and] then
[followed up the procedure with] two months of various appointments
at which [the] skin [was] scraped off with a razor blade to prevent
the bleeding of the tattoo." Jt. App. at 66. The procedure, which
cost about $500, left a scar on Stephenson's hand.
(1) The record is unclear on the date of the meeting. See Jt.
App. at 46, 75.
Stephenson filed suit. On February 14, 1996, the district
court granted summary judgment for appellees and dismissed
Stephenson's cause of action. Stephenson appealed.
II. DISCUSSION
Stephenson brings her claim pursuant to 42 U.S.C. 1983.
That provision states in relevant part:
Every person(2) who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . .
subjects, or causes to be subjected, any citizen of the
United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for
redress. . . .
42 U.S.C. 1983. To recover under 1983, Stephenson must
demonstrate that appellees deprived her of a right secured by the
Constitution while acting under "color of state law." West v.
Atkins,
487 U.S. 42, 48
(1988). Appellees concede they acted under
"color of state law" and only contest Stephenson's assertion of a
constitutional deprivation.
Students do not "shed their constitutional rights to freedom
of speech or expression at the schoolhouse gate." Tinker v. Des
Moines Indep. Community Sch. Dist.,
393 U.S. 503, 506
(1969).
Nevertheless, "[j]udicial interposition in the operation of the
public school system . . . raises problems requiring care and
restraint." Epperson v. Arkansas,
393 U.S. 97, 104
(1968).
Accordingly, we enter the realm of school discipline with caution,
appreciating that our perspective of the public schools is
necessarily a more distant one than that of the individuals working
within these schools who must "`prepare pupils for citizenship in
the Republic. . . . [They] must inculcate the habits and manners of
civility as values in themselves conducive to happiness and as
indispensable to the practice of self-government in the community
and the nation.'" Bethel Sch. Dist. v. Fraser,
478 U.S. 675, 681
(1986) (quoting C. Beard & M. Beard, New Basic History of the
United States 228 (1968)).
With these thoughts in mind, we turn to the issues before us.
Stephenson asserts that the regulation is void-for-vagueness and
overbroad. She also argues that appellees violated her procedural
due process rights and that the Board failed to adequately train
its personnel. We consider these arguments in turn.
A. STANDING FOR VAGUENESS CLAIM
Stephenson's vagueness and overbreadth arguments, though
related, Kolender v. Lawson,
461 U.S. 352, 358
n. 8 (1983),
represent two distinct claims. We first address Stephenson's
argument that the regulation violates her fourteenth amendment due
process right to adequate notice because it is void-for-vagueness.
Before reaching the merits of this issue, however, we must
determine whether Stephenson has standing to bring this due process
claim and whether her claim is moot.(3)
(3) The dissent suggests that we should not reach the merits of
Stephenson's void-for-vagueness challenge for two reasons. First,
the dissent asserts that Stephenson "waived [her] claim by agreeing
to have her tattoo removed." Infra, at 22. Appellees, however,
failed to raise this defense before the district court and failed
to raise it in their briefing on appeal. Indeed, this panel first
suggested the issue during oral argument.
As a general rule, "we will consider an issue not raised or
briefed in this court waived." Bechtold v. City of Rosemount, 104
F.3d 1062, 1068 (8th Cir. 1997). We see no reason to disturb that
rule here. We are a court of review and decline to affirm on
grounds not decided by the district court or raised by the parties
absent extraordinary circumstances. Furthermore, waiver is "an
affirmative defense under Fed.R.Civ.P. 8(c) and must generally be
pled or else [it] may be deemed waived." Bechtold, 104 F.3d at
1068. We deem that defense waived.
We also emphasize that had Stephenson followed the dissent's
suggestion to avoid the lawsuit by utilizing the District's
administrative review, she would have been suspended from school
for ten days and faced possible expulsion. Perhaps it would be
more accurate to state that the District could have avoided this
litigation by allowing students to contest its policies without
such serious penalty.
Second, the dissent echoes appellees' argument that
Stephenson's claim is moot because she "has long since graduated
from high school, and there is no possibility that she might ever
again be affected by the regulation." Infra, at 22. We disagree.
"Claims for damages or other monetary relief automatically avoid
mootness, so long as the claim remains viable." 13A Charles A.
Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice &
Procedure _ 3533.3, at 262 (2d ed. 1984); Gibson v. DuPree, 664
F.2d 175, 177 (8th Cir. 1981)("[D]amage claims are seldom moot. A
viable claim for damages ensures the existence of a live
controversy appropriate for judicial resolution. . . .").
Stephenson's amended complaint clearly states that she requests
compensatory and punitive damages. Jt. App. at 121. In short,
Stephenson's graduation is irrelevant for purposes of mootness
because, rather than seeking injunctive relief, Stephenson seeks
damages. McFarlin v. Newport Sp. School Dist., 980 F.2d 1208,
1210-11 (8th Cir. 1992) (plaintiff's graduation from high school
mooted her claim for reinstatement on the basketball team, but did
not moot her claim for damages for alleged violations of
plaintiff's civil rights).
Appellees argue that Stephenson lacks standing to challenge
the regulation as void-for-vagueness because her tattoo does not
constitute protected speech.(4) For purposes of Stephenson's
vagueness claim, however, her tattoo need not be grounded in such
constitutional protections because the claim is based on adequate
notice of proscribed behavior. See, e.g., Smith v. Goguen,
415
U.S. 566, 582
(1974) (holding statute void-for-vagueness without
finding that Goguen's actions constituted protected speech); Rios
v. Lane, 812 F.2d 1032, 1039 (7th Cir. 1987) (considering void-for-
vagueness due process claim "completely distinguishable from and
not dependent upon any free speech considerations"). Furthermore,
the District regulation implicated Stephenson's liberty interests
in governing her personal appearance, cf. Bishop v. Colaw, 450 F.2d
1069, 1075 (8th Cir. 1971) (holding that high school students have
liberty interest in determining hair length as part of their
personal appearance), and in "refusing unwanted medical treatment."
Cruzan v. Director, Mo. Dep't of Health,
497 U.S. 261, 278
(1990).
Appellees also argue that Stephenson's void-for-vagueness
claim is moot because the District amended the regulation.(5) We
disagree. "It is well settled that a defendant's voluntary
cessation of a challenged practice does not deprive a federal court
of its power to determine the legality of the practice." City of
Mesquite v. Aladdin's Castle, Inc.,
455 U.S. 283, 289
(1982)
(addressing merits of vagueness challenge to original version of
amended statute). We decline to render Stephenson's claim moot and
allow appellees to insulate themselves from liability simply by
amending the regulation. See id. Stephenson's standing to
challenge the regulation as void-for-vagueness derives from an
actual injury, directly caused by the District's regulation, that
can be compensated by a favorable decision of the courts. See
Valley Forge Christian College v. Americans United for Separation
of Church and State, Inc.,
454 U.S. 464, 472
(1982).
B. VOID-FOR-VAGUENESS
"The void-for-vagueness doctrine is embodied in the due
process clauses of the fifth and fourteenth amendments." D.C. and
M.S. v. City of St. Louis, Mo., 795 F.2d 652, 653 (8th Cir. 1986).
A vague regulation is constitutionally infirm in two significant
respects. First, the doctrine of vagueness "incorporates notions
of fair notice or warning," Goguen,
415 U.S. at 572
, and a
regulation "violates the first essential of due process of law" by
failing to provide adequate notice of prohibited conduct. Connally
v. General Constr. Co.,
269 U.S. 385, 391
(1926) (citations
omitted). In short, a regulation is void-for-vagueness if it
"forbids or requires the doing of an act in terms so vague that
[persons] of common intelligence must necessarily guess at its
meaning and differ as to its application . . . ." Id. Second, the
void-for-vagueness doctrine prevents arbitrary and discriminatory
enforcement. Goguen,
415 U.S. at 573
. "A vague law impermissibly
delegates basic policy matters to policemen, judges, and juries for
resolution on an ad hoc and subjective basis . . . ." Grayned v.
City of Rockford,
408 U.S. 104, 108-109
(1972).
Stephenson makes a facial challenge to the District
regulation, thus our "first task is to determine whether the
enactment reaches a substantial amount of constitutionally
protected conduct." Village of Hoffman Estates v. Flipside,
Hoffman Estates, Inc.,
455 U.S. 488, 494
(1982). The regulation's
description of forbidden gang activities states:
Gang related activities such as display of "colors",
symbols, signals, signs, etc., will not be tolerated on
school grounds. Students in violation will be suspended
from school and/or recommended to the Board for
expulsion.
Jt. App. at 39. As this litigation demonstrates, common religious
symbols may be considered gang symbols under the District
regulation. The meaning of Stephenson's tattoo, a cross, is
contested by the parties as Stephenson considers it simply a form
of "self-expression" while appellees believe it is a gang symbol.
A significant portion of the world's population, however, views it
as a representation of their Christian religious faith. Indeed,
the list of "prohibited" materials under the regulation includes
other potential religious symbols. See The City of Harvard v.
Gaut, 660 N.E.2d 259, 261 (Ill. App. 1996) (officers testifying at
hearing "acknowledged that the six-pointed star is a symbol of
Judaism as well as of the gangs affiliated with the Folk Nation").
The District regulation, then, sweeps within its parameters
constitutionally protected speech.
We also note that "[t]he degree of constitutional vagueness
depends partially on the nature of the enactment." Video Software
Dealers Ass'n v. Webster, 968 F.2d 684, 689 (8th Cir. 1992)
(citation omitted). Here, for example, we address a regulation in
the public school setting. Accordingly, "[g]iven the school's need
to be able to impose disciplinary sanctions for a wide range of
unanticipated conduct disruptive of the educational process, the
school disciplinary rules need not be as detailed as a criminal
code which imposes criminal sanctions." Fraser,
478 U.S. at 686
.
On the other hand, because the literal scope of the District
regulation "is capable of reaching expression sheltered by the
First Amendment, the doctrine demands a greater degree of
specificity than in other contexts." Goguen,
415 U.S. at 573
;
Video Software Dealers Ass'n, 968 F.2d at 689-90 ("A stringent
vagueness test applies to a law that interferes with the right of
free speech."). Accordingly, while a lesser standard of scrutiny
is appropriate because of the public school setting, a
proportionately greater level of scrutiny is required because the
regulation reaches the exercise of free speech.
1.
In order to assist in "determining whether an ordinance is
unconstitutionally vague, `courts traditionally have relied on the
common usage of statutory language, judicial explanations of its
meaning, and previous applications of the statute to the same or
similar conduct.'" D.C. and M.S., 795 F.2d at 654 (quoting
Postscript Enters., Inc. v. Whaley, 658 F.2d 1249, 1255 (8th Cir.
1981) (quoting Balthazar v. Superior Court, 573 F.2d 698, 700 (1st
Cir. 1978))). Here, there is no prior judicial explanation or
previous application of the District regulation to guide us. Thus,
we are left with nothing more than the undefined language of the
regulation itself.
The Supreme Court, however, analyzed the common usage of
"gang." In Lanzetta v. State of New Jersey,
306 U.S. 451
(1939),
the Court held the following statute facially void-for-vagueness:
Any person not engaged in any lawful occupation, known to
be a member of any gang consisting of two or more
persons, who has been convicted at least three times of
being a disorderly person, or who has been convicted of
any crime, in this or in any other State, is declared to
be a gangster.
Id. at 452. The Court observed that "[t]he meanings of [gang]
indicated in dictionaries and in historical and sociological
writings are numerous and varied." Id. at 453-54. Further, the
common law was similarly lacking in guidance in ascertaining its
meaning. Id. at 454. Indeed, the Court found no evidence that
"gang" has ever been limited in meaning to a group having
purpose to commit any particular offense or class of
crimes, or that it has not quite frequently been used in
reference to groups of two or more persons not to be
suspected of criminality or of anything that is unlawful.
Id. at 457. The Court concluded that the terms the provision
"employs to indicate what it purports to denounce are so vague,
indefinite and uncertain that it must be condemned as repugnant to
the due process clause of the Fourteenth Amendment." Id. at 458.
The passage of nearly fifty years since Lanzetta has only
added to the multiple meanings of "gangs." Experts studying gangs
agree with the Supreme Court and consider the term "gang"
"notoriously imprecise." Scott Cummings & Daniel J. Monti, Gangs--
The Origins and Impact of Contemporary Youth Gangs in the United
States 278 (1993); Robert K. Jackson & Wesley D. McBride,
Understanding Street Gangs 20 (1992) (meaning of "gang activity" is
"as varied as the background and perspectives of those attempting
to define it"). We find no federal case upholding a regulation,
challenged as vague or overbroad, that proscribes "gang" activity
without defining that term. Cf. Gaut, 660 N.E.2d at 263 ("The
subject matter of the law's prohibitions is not merely broad, but
open-ended and potentially limitless. The ordinance does not
define, list, or explain what constitutes a `gang symbol' or `gang
colors'; it does not even define `gang.'").
Indeed, the Seventh Circuit held a prison regulation virtually
identical to the District regulation unconstitutionally vague.
Rios v. Lane, 812 F.2d 1032, 1038 (7th Cir. 1987). But cf. James
v. Iowa, 541 N.W.2d 864 (Iowa, 1995). In Rios, a prison regulation
prohibited "engaging or pressuring others to engage in gang
activities or meetings, displaying, wearing or using gang insignia,
or giving gang signals." Rios, 812 F.2d at 1034. These terms were
undefined. Rios handed another inmate a note card with a
handwritten message which prison officials believed represented an
attempt by Rios to recruit gang members. Id. In fact, Rios merely
wished to supply information regarding Spanish-speaking radio
stations. Id.
The Seventh Circuit held that the regulation was vague as
applied to Rios because it "failed to approximate the parameters of
fairness" and gave "no prior warning that his conduct might be
proscribed . . . . Indeed, aside from the sparse text of the Rule
itself, no material whatsoever was available to Rios describing
what conduct was prohibited by the Rule." Id. at 1038. The court
noted that the regulation "fell far short" of even the minimum
requirements for regulations in the prison environment and observed
that inmates have the right "to steer away from prohibited conduct,
unentangled by the trappings of poorly delineated prison
regulations." Id. at 1039 (citation omitted).
Unlike the prison environment of Rios, the District's
regulation is in the public school setting where students are
afforded greater constitutional protections. Both regulations,
however, leave "gang" undefined, yet it represents the sole
adjective for the prohibited "`colors', symbols, signals, signs,
etc." In fact, we previously observed that the failure to define
the pivotal term of a regulation can render it fatally vague.
Video Software Dealers Ass'n, 968 F.2d at 690 (statute void-for-
vagueness on its face because, "[w]ithout a definition of
`violence,' the statute lacks any `narrowly drawn, reasonable and
definite standard[]' identifying the expression that is subject to
the statute's restriction" (quoting Interstate Circuit, Inc. v.
City of Dallas,
390 U.S. 676, 690
(1968)). Accordingly, the
District regulation fails to provide adequate notice of prohibited
conduct because the term "gang," without more, is fatally vague.
2.
The District regulation suffers from an additional defect
because it allows school administrators and local police unfettered
discretion to decide what represents a gang symbol. The National
Institute of Justice acknowledged that "traditional law enforcement
efforts sometimes exacerbate gang problems by overlabeling people
as gang members. . . . Some police departments have recognized
this problem and improved their ability to identify gang members.
. . . The key to the approach is to establish a set of restrictive
definitions." Catherine H. Conly, et al., National Inst. of
Justice, Street Gangs: Current Knowledge and Strategies 50 (1993).
The District regulation contains no such restricting definitions,
thereby failing to remedy the danger of overlabeling.
The Supreme Court emphasized the importance of defining
prohibited conduct with specificity. In Goguen, the Supreme Court
held a statute attaching criminal liability to anyone "who[] treats
contemptuously the flag of the United States" facially void-for-
vagueness because it set forth a standard so indefinite that police
and juries were free to act based on little more than their own
views about how the flag should be treated. Goguen,
415 U.S. at
568
-69. The Court noted that:
[T]here is no comparable reason for committing broad
discretion to law enforcement officials . . . . Indeed,
because display of the flag is so common and takes so
many forms, changing from one generation to another and
often difficult to distinguish in principle, a
legislature should define with some care the flag
behavior it intends to outlaw.
Id. at 581.
Gang symbols, as with display of the flag, take many forms and
are constantly changing. See, e.g., Jackson & McBride, supra at
76-77. Accordingly, the District must "define with some care" the
"gang related activities" it wishes students to avoid. The
regulation, however, fails to define the term at all and,
consequently, fails to provide meaningful guidance for those who
enforce it.
Furthermore, there is no evidence District students perceived
Stephenson's tattoo as a gang symbol or complained about the tattoo
during the thirty months Stephenson had it on her hand. Indeed,
the District regulation contains no requirement that students
consider a symbol gang-related before disciplinary action is taken.
In this case, Stephenson underwent medical treatment, incurred
expense, and suffered physical injury solely on the basis of the
subjective opinion of school administrators and local police who
had no other evidence Stephenson was involved in gang activity.
See Jackson & McBride, supra at 77 ("[I]t can often be difficult to
verify gang membership except through continual observation.").
Thus, the essentially unfettered discretion of these individuals
placed a high school student in the unenviable position of removing
her tattoo by scarring her body or suffering suspension from her
educational pursuits for ten days and face possible expulsion. The
District regulation, therefore, violates a central purpose of the
vagueness doctrine that "if arbitrary and discriminatory
enforcement is to be prevented, laws must provide explicit
standards for those who apply them." Grayned,
408 U.S. at 108
.(6)
(6) We recognize that "there are limitations in the English
language with respect to being both specific and manageably brief
. . . ." United States Civil Serv. Comm'n v. National Assoc. of
Letter Carriers,
413 U.S. 548, 578-79
(1973); see also, Goguen,
415
U.S. at 581
(recognizing there are "areas of human conduct where,
by the nature of the problems presented, legislatures simply cannot
establish standards with great precision."). The gang problem,
although complex, does not present such difficulties. The
District's twelve-word attempt to describe the proscribed behavior
("[g]ang related activities such as `colors,' signals, symbols,
signs, etc.") is not an adequate effort to provide sufficient
notice to students and parents of the conduct the regulation
proscribes.
Indeed, evidence that a more precise definition of "gang
related activities" can be crafted is contained in the District's
amended gang regulation. The new regulation states:
A "gang" as defined in this policy and under Iowa Code
723A means any ongoing organization, association, or
group of three or more persons, whether formal or
informal, having as one of its primary activities the
commission of one or more criminal acts, which has an
identifiable name or identifying sign or symbol, and
whose members individually or collectively engage in or
have engaged in a pattern of criminal gang activity. The
"pattern of gang activity" means the commission, attempt
to commit, conspiring to commit, or solicitation of two
or more criminal acts, provided the criminal acts were
committed on separate dates or by two or more persons who
are members of, or belong to, the same criminal street
gang.
Jt. App. at 108.
3.
Sadly, gang activity is not relegated to signs and symbols
otherwise indecipherable to the uninitiated. In fact, gang symbols
include common, seemingly benign jewelry, words and clothing. For
example, color combinations frequently represent gang symbols.
Gaut, 660 N.E.2d at 261 (police officers testified that the "best-
known gang `colors' were black and gold (Latin Kings and other
People Nation affiliates) and blue and black (Folk Nation
affiliates)"). Indeed, the colors red and blue are the colors of
our flag and the colors of two prominent gangs: the Bloods and
Crips. Baseball caps, gloves and bandannas are deemed gang-
related attire by high schools around the country, Paul D. Murphy,
Restricting Gang Clothing in Public Schools: Does a Dress Code
Violate A Student's Right of Free Expression?, 64 S.Cal.L.Rev.
1321, 1328 (July 1991), as well as collegiate logos. Gaut, 660
N.E.2d at 261 (Duke University baseball cap is a Folk Nation
emblem). A male student wearing an earring, Olesen v. Board of
Educ. of Sch. Dist. No. 228, 676 F.Supp. 820, 821 (N.D.Ill. 1987),
or allowing a shoelace to go untied, Gaut, 660 N.E.2d at 261, is
engaging in actions considered gang-related. Even a student who
innocently refers to classmates as "folks" or "people" is
unwittingly speaking in the parlance of the Midwestern gangs "Vice
Lords" and "Black Gangster Disciples." Jt. App. at 86. In short,
a male student walking the halls of a District school with untied
shoelaces, a Duke University baseball cap and a cross earring
potentially violates the District regulation in four ways.
Accordingly, the District regulation violates the central
purposes of the vagueness doctrine because it fails to provide
adequate notice regarding unacceptable conduct and fails to offer
clear guidance for those who apply it. A person of common
intelligence must necessarily guess at the undefined meaning of
"gang related activities." See, e.g., Murphy, supra at 1356
(citing examples of high school gang regulations that offer "very
specific" guidelines for proscribed behavior). The District
regulation is void-for-vagueness.
C. OVERBREADTH
Stephenson also argues that the District regulation is
overbroad. We need not address the merits of this claim, however,
because we agree with appellees, albeit for different reasons, that
this issue is moot.
Stephenson challenges the District regulation as facially
overbroad. Appellant's Br. at 22-23. "The First Amendment
doctrine of substantial overbreadth is an exception to the general
rule that a person to whom a statute may be constitutionally
applied cannot challenge the statute on the ground that it may be
unconstitutionally applied to others." Massachusetts v. Oakes,
491
U.S. 576, 581
(1989). This exception protects the first amendment
freedoms of other individuals, not before the court, whose speech
may be chilled as a result of the regulation. Id. Stephenson
argues that even if her tattoo does not represent speech protected
by the first amendment, this exception to traditional standing
requirements allows us to consider her overbreadth challenge.
We disagree. As we noted, supra at 8, the District amended
the regulation. The Supreme Court holds that "overbreadth analysis
is inappropriate if the statute being challenged has been amended
or repealed." Oakes,
491 U.S. at 582
. Accordingly, Stephenson's
facial overbreadth challenge to the District regulation is moot.
We also decline to hold the regulation overbroad as applied to
Stephenson because her tattoo does not merit first amendment
protection. See supra, at 7 n. 3.
D. PROCEDURAL DUE PROCESS
Stephenson also asserts that appellees violated her procedural
due process rights by failing to provide an adequate appeals
process. Stephenson must exhaust state remedies for purposes of
this claim. See Zinermon v. Burch,
494 U.S. 113, 125-26
(1990).
We need not determine whether Stephenson received all the process
she was due because she failed to exhaust her state remedies.
The relevant District regulation states:
7. Due process in all cases will be followed according
to Board Policy.
a. Principal immediately informs parent in
writing giving reason for all suspensions.
b. Principal schedules a meeting as soon as
possible with student and parents at which
time they have the opportunity to respond to
the allegations.
c. Principal makes decision to re-admit student
to school or refer the student to
Administrative Advisory Council for expulsion.
d. A prompt impartial hearing shall be scheduled
by written notice to the pupil and parents.
e. The pupil shall be entitled to representation
by counsel and have the right to call and
cross-examine witnesses.
Proactive Disciplinary Position K-12, Jt. App. at 78. Stephenson
concedes that appellees followed sections 7a and b, and that these
procedural safeguards satisfy the basic constitutional safeguards
for the type of suspension Stephenson confronted. See Goss v.
Lopez,
419 U.S. 565, 581
(1975). Stephenson argues that she
exhausted her administrative remedies because the principal,
pursuant to section 7c, made the decision to re-admit Stephenson to
school (or, more accurately, allowed her to remain in school)
rather than refer her to the Administrative Advisory Council for
further suspension or expulsion.
Stephenson, however, failed to exhaust her administrative
remedies because she never availed herself of the District's appeal
process to challenge the finding that the tattoo was a gang symbol.
Indeed, the district court succinctly summarized the denial of
Stephenson's procedural due process claim as follows:
[T]he full district disciplinary policy that sets forth
clearly a seven step procedure for bringing complaints
against school officials when a student believes her
rights are violated. Moreover, plaintiffs could have
pursued the appeal by simply refusing to have the tattoo
removed and asking the Administrative Advisory Council or
Board to make a final decision. Plaintiffs chose not to
take that appeal.
Jt. App. at 5.
We recognize that pursuing an appeal involved significant
risks for Stephenson, including a certain ten-day suspension and,
in the event of an unfavorable ruling, expulsion. Procedural due
process, however, does not guarantee a risk-free appeal process.
Accordingly, we affirm the district court's grant of summary
judgment for appellees for purposes of Stephenson's procedural due
process claim.
E. FAILURE TO TRAIN
Finally, we reject Stephenson's argument that the District
failed to properly train and instruct its employees. Section 1983
liability may attach for failure to train, but "only where the
failure to train amounts to deliberate indifference to the rights
of persons with whom the [employees] come into contact." Canton v.
Harris,
489 U.S. 378, 388
(1989). Stephenson makes no showing of
a failure to train and does not approach a showing of "deliberate
indifference" on the part of the District.
III. CONCLUSION
We affirm in part and reverse in part and remand for further
proceedings consistent with this opinion.
WOLLMAN, Circuit Judge, concurring and dissenting.
I agree with the court that Stephenson's tattoo was not
protected by the first amendment, that Stephenson's overbreadth
claim is moot, that Stephenson's failure to exhaust her state
remedies moots her procedural due process violation claim, and that
the district court was not guilty of failing to train its
employees.
Although I disagree with the court's holding that the
regulation in question is void for vagueness, I would not reach
that issue, for in the unique circumstances of this case I believe
that Stephenson waived that claim by agreeing to have her tattoo
removed. Had Stephenson utilized the procedural steps that would
have allowed her to challenge the district's finding that the
tattoo was a gang symbol, this lawsuit might well have been
averted. Stephenson has long since graduated from high school, and
there is no possibility that she might ever again be affected by
the regulation. Thus, there is no threatened injury that might
otherwise give her standing to challenge the regulation. Cf.
Valley Forge Christian College v. Americans United for Separation
of Church and State, Inc.,
454 U.S. 464, 472
(1982). Accordingly,
I would affirm the judgment.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
**FOOTNOTES**
(2)
A school district may be considered a "person" for purposes
of _ 1983 liability. Keckeisen v. Indep. Sch. Dist., 509 F.2d
1062, 1065 (8th Cir. 1975).
(4)
Stephenson's initial assertion that her tattoo represents
"political speech" and is therefore protected by the first
amendment fails by her own admission. Significantly, Stephenson
does not identify her tattoo as representing any form of religious
expression. Rather, she admits the tattoo was simply "a form of
self-expression." Jt. App. at 63.
In order to determine whether Stephenson's conduct raises
first amendment protections, we inquire "whether `[a]n intent to
convey a particularized message was present, and [whether] the
likelihood was great that the message would be understood by those
who viewed it.'" Texas v. Johnson,
491 U.S. 397, 404
(1989)
(quoting Spence v. Washington,
418 U.S. 405, 410-11
(1974)).
Stephenson's tattoo does neither. The tattoo is nothing more than
"self-expression," unlike other forms of expression or conduct
which receive first amendment protections. See, e.g., Tinker,
393
U.S. at 508
(black armbands worn by students intended to convey
opposition to Vietnam War constituted "silent, passive expression
of opinion"). Accordingly, we decline to imbue Stephenson's tattoo
with first amendment protections.
(5)
The District's amended regulation regarding gang activities,
see Jt. App. at 108, now defines "gang" consistent with a
definition of that term in the Iowa State Code. Iowa Code _ 723A.2
and _ 723A.3 (1993). The definition in the Iowa Code withstood
constitutional challenge on vagueness grounds in state court.
State of Iowa v. Walker, 506 N.W.2d 430, 432-33 (1993). Our ruling
today states no opinion concerning the constitutionality of the
District's new regulation.