Published Online: April 30, 1997

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Ban on Gang Symbols Fails To Pass Constitutional Muster, Court Rules

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An Iowa school districts policy banning gang symbols is unconstitutionally vague, a federal appeals court has ruled.

The 2-1 ruling by a panel of the U.S. Court of Appeals for the 8th Circuit, based in St. Louis, is apparently the first at the federal appellate level to consider the constitutionality of a district's restrictions on gang colors, symbols, and clothing. Subscribe to Education Week Newspaper

The Davenport, Iowa, district in 1992 adopted an anti-gang policy that prohibits the "display of 'colors,' symbols, signs, etc." The policy did not define those terms.

In August 1992, officials at West High School in Davenport noticed a small cross tattooed on the hand of Brianna Stephenson, a junior.

After consulting with school administrators and a police liaison officer, they informed Ms. Stephenson that they considered the tattoo gang-related. She would have to remove or alter the tattoo or else face suspension and eventual expulsion, administrators said.

Ms. Stephenson, who got the tattoo in 1990, had it removed through laser surgery, but she sued the district to challenge the gang policy. A federal district court dismissed the suit.

In an April 9 ruling in Stephenson v. Davenport Community School District, the 8th Circuit court invalidated the district policy. The majority said the policy failed to provide adequate notice to students of the prohibited conduct because the term "gang" is undefined.

"Gang symbols ... take many forms and are constantly changing," the majority opinion said. "Accordingly, the district must define with some care the gang-related activities it wishes students to avoid."

The court noted that there was no other evidence that Ms. Stephenson was involved in a gang. It did not address the question of whether her tattoo was protected speech under the First Amendment. The girl did not assert that the tattooed cross had any religious significance.

The dissenting judge said he disagreed that the policy was too vague, but he said Ms. Stephenson had waived her right to challenge it once she had the tattoo removed.

In another student-discipline case, a federal appeals court has reinstated a Texas law designed to keep students suspected of serious off-campus crimes out of regular classrooms.

A federal district judge in Austin invalidated the law last year in a case involving Timothy Nevares, a student at San Marcos High School who was threatened with transfer to an alternative education program after he allegedly was involved in an off-campus rock-throwing incident.

The law requires that students accused of off-campus felonies be immediately placed in alternative programs. U.S. District Judge James R. Nowlin had ruled that it fails to give students adequate opportunity for a due process hearing.

Judge Nowlin's ruling caused widespread concern among Texas school districts, which argued in court papers that a change in school placement does not violate the 14th Amendment right to due process. ("Student Rights, School Discipline Are at Issue In Off-Campus Dispute," March 20, 1996.)

In an April 11 decision in Nevares v. San Marcos Consolidated School District, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit ruled unanimously for the school district.

The student did not have a case because a transfer to an alternative program does not require a due process hearing, the court said.

"Timothy Nevares is not being denied access to public education, not even temporarily," the court said. "He was only to be transferred from one school program to another program with stricter discipline."

The court said it was following other 5th Circuit rulings that have held that students have no protected property interest in a certain curriculum or certain courses of study.

School districts' zero-tolerance policies regarding weapons are beginning to come under scrutiny in the courts.

One recent case concerned a student in the Muncie, Ind., district who was expelled for possession of a Swiss Army knife. His parents challenged the discipline policy in state courts.

A state trial judge was sympathetic to the student, but a state appeals court ruled this month for the district.

Anthony Barnell, then a 7th grader at Wilson Middle School in Muncie, was suspended for bringing the knife to school in September 1995. The district's policy said students faced automatic expulsion for bringing any weapon to school. A hearing officer recommended expulsion until January 1996, and the school board accepted the recommendation.

The boy's parents sued. A trial judge lifted the expulsion and ruled that the district had acted "arbitrarily and capriciously." The judge said administrators "were determined from the start to make an example of this child."

In an unusual conclusion, the judge also wrote that "the first prerequisite to leaving the teaching profession to become an administrator is to leave behind all common sense and compassion."

In an April 7 ruling in Board of School Trustees of the Muncie Community Schools v. Barnell, a panel of the Indiana court of appeals said it saw "nothing arbitrary in the board's decision" to expel the student. The district's zero-tolerance policy for weapons was clearly spelled out, it said, and the boy unquestionably brought the knife to school.

The court said the trial judge's statements about administrators making an example of the boy and lacking common sense and compassion had "no factual basis in the record."

--MARK WALSH mwalsh@epe.org

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