In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1233

ROOSEVELT FULLER, by his parents,
GRETTA FULLER and ROOSEVELT HARRIS, et al.,

Plaintiffs-Appellants,

v.

DECATUR PUBLIC SCHOOL BOARD OF EDUCATION
SCHOOL DISTRICT 61, et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Central District of Illinois.
No. 99-C-2277--Michael P. McCuskey, Judge.

Argued March 28, 2001--Decided MAY 24, 2001


  Before RIPPLE, KANNE, and EVANS, Circuit
Judges.

  EVANS, Circuit Judge. On September 17,
1999, a violent fight broke out in the
bleachers at a high school football game
in Decatur, Illinois, leaving spectators
scrambling to escape the melee. The
students involved in the fight were
members of rival street gangs--the Vice
Lords and the Gangster Disciples./1 As
so often happens these days, a bystander
caught the fight on videotape. It showed
participants punching and kicking each
other without concern for the safety of
others in the stands. Six students who
attended three different high schools in
the Decatur Public School District were
expelled from school for 2 years for
their roles in the fight. The fight and
the expulsions received considerable
media attention as well as the attention
of the Reverend Jesse Jackson and
Illinois Governor George Ryan. When the
dust settled, the original 2-year
expulsions were reduced to expulsions for
the remainder of the school year with the
students being given the opportunity to
attend an alternative high school.
Nevertheless unsatisfied, some of the
students, by their parents, brought this
action pursuant to 42 U.S.C. sec. 1983,
alleging that their constitutional rights
were violated because one of the three
school disciplinary rules they were found
to have violated was void for vagueness.
At trial, the district court ruled for
the School District, denying the
students’ request for declaratory relief.
The students appeal.

  The students expelled were Roosevelt
Fuller and Errol Bond, who attended
Stephen Decatur High School; Gregory
Howell and Shawn Honorable, who were
students at Eisenhower High School; and
Terence Jarrett and Courtney Carson, who
were students at MacArthur High School.
The fight in which the students were
involved began on one end of the
bleachers and traveled all the way to the
other end. Fans were jumping over the
railing, trying to get onto the track
which surrounds the football field, to
escape the fight. The principal at
MacArthur said he had never seen a fight
as bad as this one in his 27 years in
education.

  The Monday after the game, an
investigation began at each high school
to determine who was involved in the
fight. The six plaintiffs were identified
and suspended for 10 days pending further
action of the School Board. The
principals of the respective high schools
each recommended that the students be
expelled for 2 years. Letters were sent
to the students’ parents noticing a
hearing date and stating that the
students were charged with violating
three disciplinary provisions, copies of
which were attached to the letter. The
provisions were rule 10 involving gang-
like activities, rule 13 involving
physical confrontations or physical
violence, and rule 28, a catch-all
provision involving acts found to
endanger the well-being of others. The
letters also stated that the
administrators of the schools recommended
the 2-year expulsions.
  Each of the students had a separate
hearing before Dr. David O. Cooprider,
who had been the regional superintendent
for Macon and Piatt Counties and who at
the time was a hearing officer under
contract to conduct expulsion hearings.
Evidence at the hearings showed that each
student was an active participant in the
fight. It also showed that the students
were members of the rival gangs, the Vice
Lords and the Gangster Disciples, that
fought that night. Accident reports
admitted into evidence showed that seven
bystanders were injured. Fuller,
Honorable, and Carson did not attend
their hearings, and no one attended on
their behalf. Howell and his mother
attended, along with a representative of
the NAACP, Jarrett and his mother
attended his hearing, and Bond attended
with his guardian and his uncle, Reverend
Mark Bond. Dr. Cooprider recommended a 2-
year expulsion for each student.

 On October 1, 1999, the School Board
held a special meeting to consider the
expulsions of Fuller and Jarrett. The
Board reviewed the videotape of the fight
and the report of Dr. Cooprider. Two
representatives from the Rainbow/PUSH
Coalition (an organization identified
with Reverend Jackson) addressed the
Board in closed session. Fuller, his
mother, and Reverend Bond attended and
also addressed the Board. The Board voted
to expel both students for 2 years.

  On October 4, another special meeting of
the Board was held to consider the
recommendations regarding Howell, Bond,
Carson, and Honorable. Again the Board
reviewed the videotape. Howell, his
mother, and Dr. Jeanelle Norman appeared
and asked that Howell be allowed to with
draw from school rather than having the
disciplinary hearing. The request was
granted. Bond, his father, and a
representative of the Rainbow/PUSH
Coalition addressed the Board on Bond’s
behalf. No one appeared for Carson or
Honorable. In separate votes, the Board
voted to expel Bond, Carson, and
Honorable for 2 years.

  On November 8, 1999, representatives of
the School District met for 8 hours with
representatives of the Rainbow/PUSH
Coalition and Governor Ryan. That evening
the School Board held an emergency
meeting. Reverend Jackson addressed the
Board. The Board conducted separate votes
for each of the five remaining students;
the result was that the length of the
expulsions was shortened to last only
through the remainder of the 1999-2000
school year. Because of the intervention
of Governor Ryan, the students were
allowed to attend an alternative
education program immediately. Fuller and
Howell have now graduated from high
school.
  The day after the emergency meeting,
November 9, the students filed their
complaint in the present case along with
a request for a temporary restraining
order or a preliminary injunction. They
sought an order reinstating them to
school and a declaration that the rule 10
prohibition on "gang-like activities" is
void. As we stated, the students lost at
trial.

  In this court the students seek a ruling
that the prohibition against "gang-like
activity" is facially unconstitutional
because it lacks clear definitions of
what the prohibited conduct is. Because
the expulsions were based at least in
part on this rule, the students--
including Howell, who claims to have
standing despite withdrawing from school-
-contend that their due process rights
were denied. Because the period of
expulsion has ended, the students
recognize that any remedy is necessarily
limited, but they seek an order sending
the case back to the district court for a
determination whether expungement of the
disciplinary records is an appropriate
remedy. The defendants argue that Howell
lacks standing, the request for
expungement is inappropriately presented
for the first time on appeal, and the
case is moot because the rule has been
changed and the expulsions are over.

  Although we agree that Howell lacks
standing, we are not convinced that the
other students’ request for declaratory
relief is moot. See Powell v. McCormack,
395 U.S. 486 (1969). Nor are we convinced
that the request for expungement has been
waived. Although rule 10 has been
changed, and while the period of
expulsion is over, an expulsion of this
severity can have serious consequences to
the students. If the students’
constitutional rights were violated,
expungement might very well be an
appropriate equitable remedy.

  The problem for the students, however,
is convincing us that their rights were,
in fact, violated.

  Rule 10, in place when the trouble
started, prohibits students from engaging
in "gang-like activities." It provides:

As used herein, the phrase "gang-like
activity" shall mean any conduct engaged
in by a student 1) on behalf of any gang,
2) to perpetuate the existence of any
gang, 3) to effect the common purpose and
design of any gang and 4) or to represent
a gang affiliation, loyalty or membership
in any way while on school grounds or
while attending a school function. These
activities include recruiting students
for membership in any gang and
threatening or intimidating other
students or employees to commit acts or
omissions against his/her will in
furtherance of the common purpose and
design of any gang.

A violation of the rule is grounds for
suspension or expulsion from school./2

  The students argue that the phrase
"gang-like activity" is unconstitutionally
vague on its face. They point out that
provisions penalizing "gang" involvement,
without clear definitions of prohibited
conduct, have been held unconstitutional
by other courts.

  Whatever is true of other rules, rule 10
is not devoid of standards. It delineates
specific activities which are covered by
the rule: recruiting students for
membership in a gang, threatening or
intimidating other students to commit
acts or omissions against their will in
furtherance of the purpose of the gang.
It is different from the rule in
Stephenson v. Davenport Community School
District, 110 F.3d 1303 (8th Cir. 1997),
which is directed at gang-related
activities such as "display of ’colors’,
symbols, signals, signs, etc."--
activities more likely to implicate First
Amendment rights. Similarly, the rule in
another case the students cite, West v.
Derby Unified School District No. 260,
206 F.3d 1356 (10th Cir. 2000), goes
primarily to speech-related activities.
On the other hand, in our case, the rule
on its face and certainly as applied to
these students prohibits threatening and
intimidating actions taken in the name of
a gang. With that in mind, we turn to the
students’ constitutional challenge.

  A rule, regulation, or law can be
facially unconstitutional under two
different theories. First, laws that
inhibit the exercise of First Amendment
rights can be invalidated under the
overbreadth doctrine. Broadrick v.
Oklahoma, 413 U.S. 601 (1973). The
students do not proceed under this
theory. Rather, they rely on the second,
which is that even if a law does not
reach a substantial amount of
constitutionally protected conduct, it
can be found to be impermissibly void if
it fails to define the offense with
sufficient definiteness that ordinary
people can understand what conduct is
prohibited and it fails to establish
standards to permit enforcement in a
nonarbitrary, nondiscriminatory manner.
Kolender v. Lawson, 461 U.S. 352 (1983).
A facial challenge in the latter
situation is limited. In Village of
Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 497 (1982),
the Court said:

  A law that does not reach
constitutionally protected conduct and
therefore satisfies the overbreadth test
may nevertheless be challenged on its
face as unduly vague, in violation of due
process. To succeed, however, the
complainant must demonstrate that the law
is impermissibly vague in all of its
applications.

  Furthermore, the nature of the law
affects the analysis. An enactment
imposing criminal sanctions demands more
definiteness than one which regulates
economic behavior, Hoffman Estates, or as
is relevant in our case, one which
regulates the conduct of students in the
school setting. In Bethel School District
No. 403 v. Fraser, 478 U.S. 675, 686
(1986), the Supreme Court said:

Given 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.

See also Wiemerslage Through Wiemerslage
v. Maine Tp. High Sch. Dist. 207, 29 F.3d
1149 (7th Cir. 1994).

  Recently, in City of Chicago v. Morales,
527 U.S. 41, 119 S. Ct. 1849 (1999), the
Supreme Court considered a facial
challenge to a Chicago ordinance. The
ordinance prohibited criminal street gang
members from loitering with one another
or other persons in any public place.
Justice Stevens, joined by Justices
Souter and Ginsburg, recognized that the
ordinance did not have a sufficiently
substantial impact on conduct protected
by the First Amendment to subject it to a
facial overbreadth challenge. Rather, the
ordinance was characterized as a criminal
law which contained no mens rea
requirement and which infringed on the
constitutionally protected right to
liberty. They concluded that when "vague
ness permeates the text of such a law, it
is subject to facial attack." At 1858.
Justice Scalia, decrying what he saw as a
lowering of the bar for facial
challenges, dissented, contending that,
at least in contexts other than free
speech violations, facial challenges are
inherently suspect.
  For a number of reasons, we conclude
that no facial challenge can be made to
rule 10. It is doubtful whether rule 10
proscribes behavior which is protected
under any constitutional provision. It is
questionable whether it involves free
speech rights. In addition, gang
membership seems not to implicate the
right of association: in Morales, the
Chicago ordinance’s "impact on the social
contact between gang members and others
does not impair the First Amendment
’right of association’ that our cases
have recognized." 119 S. Ct. at 1857. Not
only does rule 10 have very little to do
with the Constitution, it also is not a
criminal law but merely a school
disciplinary rule. In order to prevail,
the students here need to show that the
rule is unconstitutional in all its
applications, which would include its
application to them--in other words, that
it is unconstitutional as applied. When
the rule does not reach a "substantial
amount of constitutionally protected
conduct," we must uphold a facial
challenge "only if the enactment is
impermissibly vague in all of its
applications. A plaintiff who engages in
some conduct that is clearly proscribed
cannot complain of the vagueness of the
law as applied to the conduct of others."
Hoffman Estates, 455 U.S. at 494-95.

  Is the rule unconstitutional as applied
to these students? The phrase the
students contend is vague is "gang-like
activity." The rule goes on to say that
"gang-like activity" is conduct engaged
in "on behalf of any gang," "to
perpetuate the existence of any gang,"
"to effect the common purpose" of a gang,
or "to represent a gang affiliation,
loyalty or membership . . . ." Fighting
in support of one’s gang falls under more
than one of these definitions.
Ironically, in Morales the problem with
the anti-loitering ordinance was that
"loitering" was defined as remaining "in
any one place with no apparent purpose."
It was the phrase "no apparent purpose"
that was found to be overly vague, not
the phrase "a criminal street gang
member" which was also found in the
ordinance. In fact, it may be that the
ordinance was not clearly enough limited
in its application to gang members.
Justice O’Connor, joined by Justice
Breyer, said, "If the ordinance applied
only to persons reasonably believed to be
gang members, this requirement might have
cured the ordinance’s vagueness because
it would have directed the manner in
which the order was issued by specifying
to whom the order could be issued." 119
S. Ct. at 1864. It is hard to see why
police officers might be given discretion
to determine who might be a gang member
in the context of a criminal law, but
school officials cannot determine, in the
context of school discipline, what gang-
like activity is, especially when what is
at issue is a violent fight between rival
members of well-known street gangs. The
situation is different from that in Rios
v. Lane, 812 F.2d 1032 (7th Cir. 1987),
in which we found a prison regulation
unconstitutional as applied to an inmate
who copied information from an authorized
prison newspaper and disseminated
thecopies. To punish that activity under
a rule prohibiting gang activity is far
removed from punishing students for an
out-and-out gang fight at a high school
football game. Notably, also, the prison
regulation in Rios was found
unconstitutional, not on its face, but
only as applied to the inmate.

  That any persons charged with keeping
the peace--e.g., police officers or
school officials--have an obligation to
break up a violent fight in the stands at
a high school football game cannot be
disputed. Then later, when a careful
investigation reveals that the fight was
between well-known rival street gangs, it
is reasonable for school officials to see
the fight as "gang-like activity." In
fact, the students do not say that the
fight was not gang-related. As applied in
this case, the school disciplinary rule,
even before it was changed, was
sufficiently definite to withstand this
constitutional challenge.

  The decision of the district court is
AFFIRMED.

FOOTNOTES

/1 These gangs are well-known in the Seventh
Circuit, as many of our opinions, see United
States v. Hoover, 2001 WL 361014 (Apr. 12, 2001)
("The Gangster Disciples, a large and vicious
street gang"), and Goka v. Bobbitt, 862 F.2d 646
(7th Cir. 1988) ("The Notorious Vice Lords"), for
example, discuss their activities. See also
Garner v. Barnett, 199 F.3d 915 (7th Cir. 1999)
(en banc), which involved the shooting death of
the manager of a high school football team caught
between areas "controlled" by the Gangster
Disciples and the Vice Lords.

/2 The combination of "and" and "or" in line 4 of
the rule is an accurate rendition of the rule. It
makes the rule somewhat confusing, but it does
not affect our analysis.
