Stephenson v. Davenport Community School Dist.

• Citation: 110 F.3d 1303
• Decision Date: 30 May 1997
• Docket Number: No. 96-1770,96-1770
• Parties: 117 Ed. Law Rep. 443 Brianna STEPHENSON, Plaintiff-Appellant, v. DAVENPORT COMMUNITY SCHOOL DISTRICT; Davenport Community School Board; Jim Foy, individually; William Rettko, individually, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1303

110 F.3d 1303

117 Ed. Law Rep. 443

Brianna STEPHENSON, Plaintiff-Appellant, v. DAVENPORT COMMUNITY SCHOOL DISTRICT; Davenport Community School Board; Jim Foy, individually; William Rettko, individually, Defendants-Appellees.

No. 96-1770.

United States Court of Appeals,Eighth Circuit.

Submitted Oct. 21, 1996.

Decided April 9, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied May

30, 1997. ^*

M. Leanne Tyler, Davenport, IA, argued, for plaintiff-appellant.

Ralph D. Sauer, Davenport, IA, argued (Jean Feeney, Carole J. Anderson and Jodi K. Plagenz, on the brief), for defendants-appellees.

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 school 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." Jt.App. at 63. 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." Id. 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." Id. 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." Id. at 66. The procedure, which cost about $500, left a scar on Stephenson's hand.

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, 108 S.Ct. 2250, 2254, 101 L.Ed.2d 40 (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, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (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, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (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, 106 S.Ct. 3159, 3163, 92 L.Ed.2d 549 (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, 103 S.Ct. 1855, 1859 n. 8, 75 L.Ed.2d 903 (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

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, 94 S.Ct. 1242, 1251, 39 L.Ed.2d 605 (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,...