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. 
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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 
-3-

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
 The record is unclear on the date of the meeting. See Jt.

1

App. at 46, 75.

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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 with Stephenson, her mother, and Foy. At that meeting, the school 1

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. 
 A school district may be considered a “person” for purposes 2

of § 1983 liability. Keckeisen v. Indep. Sch. Dist., 509 F.2d

1062, 1065 (8th Cir. 1975).

-5-

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 who, under color of any statute, ordinance,

2

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). 
 The dissent suggests that we should not reach the merits of 3

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

-6-

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 selfgovernment 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
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).

 Stephenson’s initial assertion that her tattoo represents

4

“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

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Appellees argue that Stephenson lacks standing to challenge the

regulation as void-for-vagueness because her tattoo does not constitute

protected speech. For purposes of Stephenson’s 4
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. 

 The District’s amended regulation regarding gang activities, 5

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.

-8-

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. We 5
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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 
-10-

meaning and differ as to its application . . . .” Id. Second, the voidfor-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. 
-11-

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, 
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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. T h e

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 
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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, 
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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). 
-15-

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 gangrelated before disciplinary action is taken. 
 We recognize that “there are limitations in the English

6

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

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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
are members of, or belong to, the same criminal street

gang.

Jt. App. at 108. 

-17-

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 
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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. 
-19-

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.
-20-

e. The pupil shall be entitled to representation by

counsel and have the right to call and crossexamine 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 readmit 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. 
-21-

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 
-22-

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.