Copper ex rel. Copper v. Denlinger, No. COA07-205 (N.C. App., Oct. 21, 2008)
The North Carolina Court of Appeals last month remanded to a trial court a case involving a claim that a school district’s anti-gang policy is unconstitutionally vague. The plaintiffs argues that the policy fails to define, with enough specificity that a student could understand, what conduct is prohibited and fails to establish standards to permit enforcement in a non-arbitrary, non-discriminatory manner. Because the school district contended that it had made a list of prohibited items, symbols, and conduct available to give students notice of prohibited conduct and dress and to limit the discretion of school administrators, the appellate court concluded that it could not rule on the constitutionality of the policy and remanded the case for further proceedings.
Several Durham Public Schools (DPS) students who had received short-term or long-term suspensions for violating the anti-gang policy sued the school board, the superintendent in her individual and official capacities, and the school board members in their individual and official capacities. The lawsuit raised a variety of claims under both state and federal constitutions. The trial court dismissed the claim that the gang policy was void for vagueness under both state and federal free speech/expression provisions, concluding that the policy “defines a violation of the policy with sufficient definiteness that a student could understand what conduct was prohibited and it establishes standard to permit enforcement in a non-arbitrary, non-discriminatory manner.” The students appealed to the North Carolina Court of Appeals, arguing the policy is unconstitutionally vague on its face. The relevant portion of policy provides that: “Conduct prohibited by this policy includes: (i) Wearing, possessing, using, distributing, displaying, or selling any clothing, jewelry, emblems, badges, symbols, signs or other items which may be evidence of membership or affiliation in any gang; (ii) Communicating either verbally or nonverbally (gestures, handshakes, slogans, drawings, etc.) to convey membership or affiliation in a gang; … .”
The appellate court began its analysis by pointing out that while the policy defined “gang,” it did not specify what "clothing, jewelry, emblems, badges, symbols, signs or other items . . . may be evidence of membership or affiliation in any gang." The court found the same deficiency in the provision addressing gestures. “Courts considering similar provisions that could, without further definition, equally encompass innocent and gang-related behavior or dress have found the provisions unconstitutionally vague,” the court found. It cited Stephenson v. Davenport Community School District, 110 F.3d 1303 (8th Cir. 1997), in which the U.S. Court of Appeals for the Eighth Circuit ruled that a school district’s anti-gang policy that failed to define the specific gang-related activities prohibited was unconstitutionally vague. The Eighth Circuit had pointed that “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.” The North Carolina court then listed a string of federal and state court decisions that had reached the same conclusion. The court found that the sole decision, cited by DPS, that had come out the other way, Fuller v. Decatur Public School Board of Education School District, 251 F.3d 662 (7th Cir. 2001), was inapplicable because there the Seventh Circuit itself had distinguished Stephenson by noting that the policy in Stephenson, “[was] directed at gang-related activities such as 'display of "colors", symbols, signals, signs, etc.'—activities more likely to implicate First Amendment rights” that what was at issue in Fuller.
Copper ex rel. Copper v. Denlinger, No. COA07-205 (N.C. App., Oct. 21, 2008)
[Editor’s Note: Information on similar controversies and legal disputes is available below.]
NSBA School Law pages on wearing of rosaries