# 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 actio n against the Davenport Community School District, its Board, and two school officials in their in dividual capacities (Appellees). Stephenson asserts that appellees forced her to remove a tattoo pursuant to the District’ s regulation prohibitin g gang symbols. There is no evidence Stephenson was ever involved in gang activity and she denies th e tattoo is a gang symbol. Stephe nson claims that the regulation is overbroad and vague, tha t appellees violated her procedural due process rights, and that the Board failed to adequately train its personnel.

### -2- The district court granted summary judgment for appellees an d 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 cros s between her thumb and index finger. She was an eighth grade student in th e Davenport Community School District (District) at the time, and wore the tattoo without incident while enrolled in the Di strict for the next thirty months. Stephenson intended her tattoo to be a form of “self expression.” She did n ot consider the tattoo a religious symbol. She also did no t intend the tattoo to communicate gang affiliation.

Stephe nsoneventually enrolled at West High School, within th e District, where, despite a learning disability, she worked her way onto th e honor roll and served as a home room representative. Her report card s characterize Stephenson as “conscientious & diligent” and a “pleasure to have in class.” Jt. App. at 89. Stephenson hadno record of disciplinary problems and was never involved in gang activity.
While Stephenson attended West High School, gang activity within the Distri ct’s schools increased. Students brought weapons to class an d violence resulted from gang members threatening other

### -3-

students who displayed rival gang signs or symbols. Furthermore, gan g members attempted to intimidate students who wer e not members into joining their gangs.

The District worked closely with local police to address thes e problems. In August 1992, Superintendent Peter F. Flynn sent a letter to Dis trict parents that included the District’s “Proactive Disciplinar y Positi on K-12.” That regulation states that “[g]ang related activitie s suchas display of `colors,’ symbols, signals, signs, etc., will not b e tolerated on school grounds. Students in violat ion will be suspended from school an d/or recommended to the Board for expulsion.” Jt. App. at 39

. No de finition 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 discu ss her class schedule. Granneman noticed Stephenson’s tattoo , considered it a gang symbol, and notified Associate Principal Jim Foy. Fo y consulted Police Liai son Officer David Holden who, based on a drawing and descriptionof the tattoo, stated his opinion that it was a gang symbol. Aside from the tattoo , there was no evidence that Stephenson was involved in g ang activity and no other student complained about the tattoo o r considered it a gang symbol. Foy phone d 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 woul d continue to attend school on a temporary basis with the tattoo covered

. Foyinformed Stephenson’s parents that she needed to remove or alter the tattoo, otherwise the school would initiate disciplinary procedures an d suspend Stephenson for ten days. Stephenson cho se not to alter the tattoo

### T he record is unclear on the date of the meeting. See Jt
. 1 

### App. at 46, 75.
-4- because she did not w ant 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 onl y effective method to remove the tattoo.

On September 9, Officer Holden examined Stephenson’s tattoo an d confirmed his earlier opinion that it was a gangsymbol. 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 wi th 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 no t
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 an d Rettko and confirmed that she was completing laser treatment for removal of the ta ttoo later that day. The doctor performing the removal “burn t through four layers of . . . skin [and] then [followed up the procedur e with] two months of various appointments at whic h [the] skin [was] scraped off with a razor blad e 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.2 d 1062, 1065 (8th Cir. 1975).

-5- St ephensonfiled suit. On February 14, 1996, the district cour t granted summary judgment for appellees and dismi ssed Stephenson’s cause of action. Stephenson appealed.

II. DISCUSSION

Stephensonbrings her claim pursuant to 42 U.S.C. § 1983. Tha t provision states in relevant part:

Ev eryperson 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 immunitie s secured by the Constitution and laws, shall be liable to th e pa rtyinjured in an action at law, suit in equity, or othe r proper proceeding for redress. . . .

42 U.S.C. § 1983. To recover under § 1983, Stephenson must demonstrat e 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 o f speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep

. Community Sch. Dist. , 393 U.S. 503, 506 (1969). Nevertheless, “[j]udicial interposi tionin the operation of the public school system . . . raise s 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-vaguenes s challenge for two reasons. First, the dissent asserts that Stephenson “waived [her] claim by a greeing 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 gen eral rule, “we will consider an issue not raised o r 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 rul e here. We are a court of review and decline to affirm o n grounds not decided by the dis trict court or raised by the parties abse nt extraordinary circumstances. Furthermore, waiver is “a n affirmative defense under Fed.R.Civ.P. 8(c) and must generally be
-6- Accord ingly, 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 wo rking within these schools who must “‘prepare pupils for citizenship in the Republic. . . . [They ] must inculcate the ha bits and manners of civility as values in themselves cond ucive 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 fa iled to adequately train its personnel. We consider these arguments in turn.

A. STANDING FOR VAGUENESS CLAIM Ste phenson’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 regulatio n violat es her fourteenth amendment due process right to adequate notic e because it is void-for-vagueness. Before reaching the merits of thi s issue, however, we must determine whether Stephe nson 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 a t

1068. We deem that defense waived. We also emphasize that had Stephenson followed the dissent’s sugg estion to avoid the lawsuit by utilizing the District’ s admini strative review, she would have been suspended from schoo l for t en days and faced possible expulsion. Perhaps it would b e more accurate to state that the District could have avoided thi s liti gation by allowing students to contest its policies withou t such serious penalty. Second, the dissent echoes appellees’ argument tha t Ste phenson’s claim is moot because she “has long since graduate d from high school, and there is no possibility that she might ever again be affected by the regul ation.” Infra , at 22. We disagree. “Claim s for damages or other monetary relief automatically avoi d mootn ess, so long as the claim remains viable.” 13A Charles A

. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Proce dure § 3533.3, at 262 (2d ed. 1984); Gibson v. DuPree , 66 4 F.2d 175, 177 (8th Cir. 1981)( “[D]amage claims are seldom moot. A viable claim for damages ensures the existence of a liv e co ntroversyappropriate for judicial resolution. . . .”)

. Step henson’s amended complaint clearly states that she request s compe nsatoryand punitive damages. Jt. App. at 121. In short , Stephe nson’s graduation is irrelevant for purposes of mootnes s be cause, rather than seeking injunctive relief, Stephenson seek s damages. McFarlin v. Newport Sp. School Dist. , 980 F.2d 1208 , 1210-1 1 (8th Cir. 1992) (plaintiff’s graduation from high schoo l mooted her claim for reinstate ment on the basketball team, but did not moot her claim for damages for alleged violations o f plaintiff’s civil rights).

Stephenson’s initial assertion that her tattoo represent s 4 

### “p olitical speech” and is therefore protected by the firs t amendm ent fails by her own admission. Significantly, Stephenso n does not identify her tattoo a s representing any form of religious expressi on. Rather, she admits the tattoo was simply “a form o f self-expression.” Jt. App. at 63.
In ord er to determine whether Stephenson’s conduct raise s first amendment protections, we inquire “whether ‘[a]n intent t o co nveya particularized message was present, and [whether] th e likelihood was great that the message would be understood by those
-7- App ellees argue that Stephenson lacks standing to challenge th e regulation as void-for-vagueness because her tattoo does not constitut e protected speech. For purposes of Stephenson’s 4

### who vie wed it.’” Texas v. Johnson , 491 U.S. 397, 404 (1989 )

(quoti ng Spence v. Washington , 418 U.S. 405, 410-11 (1974))

. Stephenson’s tattoo does neith er. The tattoo is nothing more than “self- expression,” unlike other forms of expression or conduc t which receive first amendment protections. See, e.g. , Tinker , 393 U.S. at 508 (black armbands worn by students intended to conve y opposition to Vietnam War constituted “silent, passive expression of opinion”). Accordingly, we decline to imbue Stephenson’s tattoo with first amendment protections.

The Distric t’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 withstoo d constitutional challenge on vagueness grounds in state court

. State of Iowa v. Walker , 506 N.W.2d 430, 432-33 (1993). Our ruling toda ystates no opinion concerning the constitutionality of th e District’s new regulation.

-8- vague ness claim, however, her tattoo need not be grounded in suc h constitutional protections because the claim is based on adequate notice of proscribed behavior. See, e.g. , Smith v. Goguen , 415 U.S. 566, 58 2 (1974) (holding statute void-for-vagueness without finding that Goguen’s actions constituted protected speech); Rios v. Lane , 812 F.2d 1032, 1039 (7th C ir. 1987) (considering void-for-vagueness due process clai m “compl etelydistinguishable from and not dependent upon any free speec h considerations”). Furthermore, the District regulation implicate d Stephenson’s liberty interests in governing her personal appearance, cf. Bishop v. Colaw , 450 F.2d 1069, 1075 (8th Cir. 1971) (holding that hig h school students have liberty interest in determining hair length as part of the ir personal appearance), and in “refusing unwanted medica l treatment .” Cruzan v. Director, Mo. Dep’t of Health , 497 U.S. 261, 27 8 (1990).

Appe llees also argue that Stephenson’s void-for-vagueness claim i s moot because the District amended the regulation. We 5

### -9-

disagree. “It is well settled that a defendant’s voluntary cessation of
a challenged practice does not deprive a federal court of its power t o determine the legality of the practice.” City of Mesquite v. Aladdin’ s Castle, Inc. , 455 U.S. 283, 289 (1982) (addressing merits of vaguenes s challenge to original version of amended statute). We decline to render Stephe nson’s claim moot and allow appellees to insulate themselves fro m 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 comp ensated by a favorable decision of the courts. See Valley Forg e Christian College v. Americans United for Separation of Church and State, Inc. , 454 U.S. 464, 472 (1982). B. VOID-FOR-VAGUENESS “Th e void-for-vagueness doctrine is embodied in the due proces s 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 infi rm in two significant respects. First, the doctrine of vagueness “incorporates notions of fair notic e or warning,” Goguen , 415 U.S. at 572, and a regulation “violates the firs t essential of due process of l aw” by failing to provide adequate notice of prohibited conduct

. Conn allyv. General Constr. Co. , 269 U.S. 385, 391 (1926) (citation s omitted). In short, a regulation is void-for-vagueness if it “forbids or require s the doing of an act in terms so vague that [persons] of commo n intelligence must necessarily guess at its

### -10-

meaning and differ as to its application . . . .” Id. Second, the voidfor-vagueness doctrin e prevents arbitrary and discriminatory enforcement. Goguen , 415 U.S. at 573. “A vague law impermissibly delegates basic polic y matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis . . . .” Grayned v. City of Ro ckford , 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 substantia l amount of constitutionally protected conduct.” Village of Hoffman Estates

v. Flipside, Hoffman Estates, Inc. , 455 U.S. 488, 494 (1982). Th e regulation’s description of forbidden gang activities states:

Gang related activities such as display of “colors”, symbols, signals, signs, etc., wi ll not be tolerated on school grounds. Stud ents in violation will be suspended from school and/o r recommended to the Board for expulsion.
Jt. App. at 39. As this litigation demonstrates , common religious symbols may be considered gang symbols under the Distric t 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 hearin g “acknowledged that th e six-pointed star is a symbol of Judaism as well as of the gangs affiliat ed with the Folk Nation”). The District regulation, then, sweeps within its parameters constitutionally protected speech.

### -11- We also n ote that “[t]he degree of constitutional vagueness depends partiallyon the nature of the enactment.” Video Software Dealers Ass’n

v. Webster , 968 F.2d 684, 689 (8th Cir. 1992) (citation omitted). Here, for exam ple, we address a regulation in the public school setting

. Accordingly, “[g]iventhe school’s need to be able to impose disciplinary sanctio ns for a wide range of unanticipated conduct disruptive of th e educational process, the school disciplinary rul es need not be as detailed as a criminal code which imposes criminal sancti ons.” Fraser , 478 U.S. at 686. On the other hand, because the literal scope of the Distric t regula tion “is capable of reaching expression sheltered by the Firs t Ame ndment, the doctrine demands a greater degree of specificity than i n 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 tha t interferes with the r ight of free speech.”). Accordingly, while a lesser standard of scrutiny is appropriate because of the public school setting,
a prop ortionately greater level of scrutiny is required because th e regulation reaches the exercise of free speech.

1.

In order to assist in “determining whether an ordinance i s unconstitutionally va gue, ‘courts traditionally have relied on the common usage of statutory language, judicial explanations of its meaning, an d 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 judicia l explanation or previous application of the District regulation to guide us

. Thus,

### -12-

we are left with nothing more than the undefined language of the regulatio n itself.

The Supreme Court, however, analyzedthe 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 i n any lawful occupation, known to be a member of any gang consisting of two or more persons, who has bee nconvicted at least three times of being a disorderl y 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 lackin g 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 havin g purpose to commit any particular offense or class o f crimes, or that it has not quite frequently been used in reference t o groups of two or more persons not to be suspected o f criminality or of anything that is unlawful.

Id. at 457. The Cour t concluded that the terms the provision “employs to indicate what it purports to denounce are so vague, indefinite an d 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 Lanzettahas only added to the multipl e 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 Gang s in the United

### -13-

Sta tes 278 (1993); Robert K. Jackson & Wesley D. McBride, Understandin g Street Ga ngs 20 (1992) (meaning of “gang activity” is “as varied as th e background and perspectives of those attempting to define it”). We find no federal case uphol ding a regulation, challenged as vague or overbroad, that proscribes “gang” activity without definingthat 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 virtuall y identi cal to the District regulation unconstitutionally vague. Rios v

. Lane , 812 F.2d 1032, 1038 (7th Cir. 1987). But cf. James v. Iowa , 54 1 N.W.2d 864 (Iowa, 1995). In Rios, a prison regulation prohibited “engagin g or pressuring others to engage in gang activitie s 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 represente d
an a ttempt by Rios to recruit gang members. Id. In fact, Rios merel y wishe d to supply information regarding Spanish-speaking radio stations

. Id. The Seventh Circuit held that the re gulation was vague as applied to Rios because it “failed to approximate the parameters of fairness” and gav e “no p rior 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 “f ell far short” of even the minimum requirements for regulations in the prison environment and observe d that inmates have the right “to steer away from prohibited conduct,

### -14-

unentangled by the trappings of poorly delineated prison regulations.” Id

. at 1039 (citation omitted).

Unlike th e prison environment of Rios , the District’s regulation is in the public school setting where students are afforded greate r
co nstitutional protections. Both regulations, however, leave “gang ” undefi ned, yet it represents the sole adjective for the prohibite d “`colors’, symbols, signals, signs, etc.” In fa ct, we previously observed that the failure to d efine the pivotal term of a regulation can render it fatal lyvague. Video Software Dealers Ass’n , 968 F.2d at 690 (statut e void-for-vagueness on its face because, "[w]ithout a definition o f ‘violence,’ the statute lacks any ‘narrowly drawn, reasonable and definite standa rd[]’ identifying the expression that is subject to the statute’ s restriction” (quoting Interstate Circuit, Inc. v . City of Dallas , 390 U.S. 676, 6 90 (1968)). Accordingly, the District regulation fails to provid e adequa te notice of prohibited conduct because the term “gang,” withou t more, is fatally vague.

2.
The District regulation suffers from an additional defect because it allo ws school administrators and local police unfettered discretion t o decide what represents a gang symbol. The National Institute of Justice acknowledged that “traditional law enforcement efforts sometimes exacerbat e gang problems by overlabeling people as gang members. . . . Some police depart ments have recognized this problem and improved their ability t o identify gang members. . . . The key to the approach is to establish a se t of restrictive definitions.” Catherine H. Conly, et al., National Inst. of Justice, Street Gangs: Current Knowledge and Strategies 50 (1993).

### -15-

The District regulati on contains no such restricting definitions, thereby failing to remedy the danger of overlabeling.

Th e Supreme Court emphasized the importance of defining prohibite d condu ct with specificity. In Goguen , the Supreme Court held a statut e attaching criminal liability to anyone “who[] treats contemptuously th e flag of the United States” facially void-for-vagueness because it set fort h a standard so indefin ite 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 broa d discretion to law enforcement officials . . . . Indeed, becaus e display of the flag is so common and takes so many forms, changing fro m one generation to another and often difficult to di stinguish in principle, a legislature should define with some care the flag behavior it intends to outlaw.

Id. at 581.

Gang s ymbols, as with display of the flag, take many forms and ar e 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. Furthe rmore, there is no evidence District students perceive d Stephenson’s tattoo as a gang symbol or complain ed about the tattoo during the thirty months Stephenson had it on her hand. Indeed, the Distric t regulation contains no requirement that students consider a symbol gangrelated before disciplinary action is taken.

### We recognize that “there are limitations in the Englis h 6 

### language with respect to being both specific and manageably brief

. . . .” United States Civil Serv. Comm’n v. National Assoc. o f Letter Carriers , 413 U.S. 548, 578-79 (1973); see also , Gogu en , 415 U.S. at 581 (recognizing there are "areas of human conduct where, by the nature of the problems presented, legislatures simply cannot esta blishstandards with great precision.”). The gang problem , al thoughcomplex, does not present such difficulties. Th e District’s twelve-word attempt to describe the proscribed behavior (“[g ]ang related activities such as `colors,’ signals, symbols , sig ns, etc.”) is not an adequate effort to provide sufficien t notice to students and parents of the conduct the regulatio n proscribes. Indeed, evidence that a more precise definition of "gan g 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 Cod e 723Ameans any ongoing organization, association, o r grou p of three or more persons, whether formal o r info rmal, having as one of its primary activities th e commis sion of one or more criminal acts, which has a n identi fiable name or identifying sign or symbol, an d whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity. Th e “pattern of gang activity” mea ns the commission, attempt to commit, conspiring to commit, or solicitation of two or mor e criminal acts, provided the criminal acts wer e committedon separate dates or by two or more persons wh o -16- In this case, Stephenson underwent medical treatment, incurred expense, an d suffered physical inj ury solely on the basis of the subjective opinion of school administrators and local police who had no other evidence Stephenso n was involved in gang activity. See Jackson & McBride, supra at 77 (“[I]t can often be difficul t to verify gang membership except through continual observa tion.”). Thus, the essentially unfettered discretion of thes e individuals placed a high school student in the unenviable position o f removing her tattoo by scarring her body or suffering suspension from her educational pursuits for ten days and face possible expulsion. Th e District regulation, therefore, violates a central purpose of the vaguenes s doctri ne that “if arbitrary and discriminatory enforcement is to b e 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 stree t

gang. Jt. App. at 108.
-17- 3.
Sadly, gang activity is not relegate d to signs and symbols otherwise indecipherable to the uninitiated. In fact, gang symbols include common, seemin glybenign jewelry, words and clothing. For example, colo r combinations frequently represent gang symbols. Gaut , 660 N.E.2d at 261 (police officers testified that the “best-known gang ‘colors’ were black and g old (Latin Kings and other People Nation affiliates) and blue an d black (Folk Nation affiliates)”). Indeed, the c olors 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 attir e by h igh schools around the country, Paul D. Murphy, Restricting Gan g 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 a s collegiate logos. Gaut , 660 N.E.2d at 261 (Duke University baseball cap is a Fo lk 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 shoelac e 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 th e parlan ce of the Midwestern gangs “Vice Lords” and “Black Gangste r Disciples.” Jt. App. at 86. In short, a male student walking the halls of a District school with untied

### -18-

shoelaces, a Duke Uni versity baseball cap and a cross earring potentially violates the District regulation in four ways. Acco rdingly, the District regulation violates the central purpose s of the vagueness doctrine because it fails to provide adequate notic e regarding unacceptable conduct and fails to offe r 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 , supraat 1356 (citingexamples of high school gang regulations that offer “veryspecific” guidelines for proscribed behavior). The Distric t regulation is void-for-vagueness.

C. OVERBREADTH

Steph ensonalso argues that the District regulation is overbroad

. We need n ot address the merits of this claim, however, because we agre e with appellees, albeit for different reasons, that this issue is moot.
Stephenson challenges the District r egulation as facially overbroad. App ellant’s Br. at 22-23. “The First Amendment doctrine of substantia l overbre adthis an exception to the general rule that a person to whom a statute may be constitutionally applied cannot challenge the statute on th e ground that it may be unconstitutionally applied to others.” Massachusett s
v. Oakes , 491 U.S. 576, 581 (1989). This exception protects the firs t amendment freedoms of other individuals, not before the court, whose speec h may be chilled as a result of the regulation. I d. Stephenson argues that
even if h er tattoo does not represent speech protected by the firs t 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 th e regula tion. The Supreme Court holds that “overbreadth analysis i s inappr opriate if the statute being challenged has been amended o r repeale d.” Oakes , 491 U.S. at 582. Accordingly, Stephenson’s facia l overbreadth challenge to the District regulationis moot. We also decline to hold the regulation overbroad as applied to Stephenson because he r tattoo does not merit first amendment protection. See supra , at 7 n. 3.

D. PROCEDURAL DUE PROCESS

St ephensonalso asserts that appellees violated her procedural du e proces s rights by failing to provide an adequate appeals process

. Stephenson must exhaust state remedies for purposes of this claim. Se e Zinermonv. Burch , 494 U.S. 113, 125-26 (1990). We need not determin e whether Stephenson received all the process she was due because she failed to exhaust her state remedies.
The relevant District regulation states:

7. Due pr ocess in all cases will be followed according t o Board Policy.

a. Principal immediately informs parent in writin g giving reason for all suspensions.
b. Princi pal schedules a meeting as soon as possibl e with s tudent and parents at which time they hav e the opportunity to respond to the allegations.

c. Pri ncipal makes decision to re-admit student t o sch ool or refer the student to Administrativ e Advisory Council for expulsion.
d. Apro mpt impartial hearing shall be scheduled b y written notice to the pupil and parents.

### -20- e. The p upil shall be entitled to representation b y counsel and have the right to call and cross

examine witnesses.
Proactive Disciplinary Position K-12, Jt. App. a t 78. Stephenson concedes that appellees followed sections 7a and b, and that these procedura l safegu ards satisfy the basic constitutional safeguards for the type o f suspension Stephenson confronted. See Goss v. Lopez , 419 U.S. 565, 58 1 (1975). Stephenson argues that she exhausted her administrative remedies because the principal, pursuant to section 7c, made the decision to re

admit Stephenson to s chool (or, more accurately, allowed her to remain in school) rather than refer her to the Administrative Advisory Council for further suspension or expulsion.

Step henson, however, failed to exhaust her administrative remedie s because she never availed herself of the District’s appeal process t o cha llenge the finding that the tattoo was a gang symbol. Indeed, th e district court succinctly summarized the denial of Stephenson’s procedural due process claim as follows:
[T]he full district disciplinary policy that sets f orth clearly a seven step procedure for bringing complaints against school offi cials when a student believes her rights are violated

. Moreov er, plaintiffs could have pursued the appeal by simpl y refu sing to have the tattoo removed and asking th e Ad ministrative Advisory Council or Board to make a fina l decision. Plaintiffs chose not to take that appeal.

Jt. App. at 5. We recogn ize that pursuing an appeal involved significant risks for Stephenson, including a certain ten-day suspensi on and, in the event of an unfavorable ruling, e xpulsion. Procedural due process, however, does not guarantee a risk-free appeal process.

### -21-

Accordingly, we affir m 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 properlytrain and instruct its employees. Section 1983 liability ma y attach for failure to train, but “only where the failure to train amounts to de liberate indifference to the rights of persons with whom th e [emp loyees] come into contact.” Canton v. Harris , 489 U.S. 378, 38 8 (1989). Stephenson makes no showing of a failure to train and does no t approach a showing of “deliberate indifference” on the part of th e District.

III. CONCLUSION

We a ffirm in part and reverse in part and remand for furthe r proceedings consistent with this opinion.
WOLLMAN, Circuit Judge, concurring and dissenting.
I agree with the court that Stephens on’s tattoo was not protected by the fi rst amendment, that Stephenson’s overbreadth claim is moot, tha t Stephenson’s failure to exhaust her state remedies moots her procedural du e proce ss violation claim, and that the district court was not guilty o f 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

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that Stephenson waive d 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, thi s lawsuit might well have been averted. Stephenso n has long since graduated from high school, and there is no possibility th at she might ever again be affected by the regulation. Thus, there is no threatened injury that migh t otherwise give her standing to challenge the reg ulation. 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.