                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-1954
                                   ___________


Rosia Woodis,                            *
                                         *
            Appellant,                   *
                                         *
      v.                                 *   Appeal from the United States
                                         *   District Court for the Western
Westark Community College,               *   District of Arkansas.
                                         *
            Appellee.                    *

                                   ___________

                            Submitted: September 22, 1998
                                Filed: November 9, 1998
                                 ___________

Before HANSEN, BRIGHT and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________


BRIGHT, Circuit Judge.

      Appellant-plaintiff Rosia Woodis brings this 42 U.S.C. § 1983 action against
Westark Community College (“Westark”). Westark expelled Woodis from its nursing
college for violating the college’s rules, the Standards of Conduct (“Standards”).1

      1
       The Standards established the following to govern the behavior of Westark
students:

            Westark College assumes that, by the act of registering, the student
Woodis asserts two distinct claims: that the Standards are unconstitutionally vague,
and that Westark violated her procedural due process rights. The district court granted
judgment as a matter of law in favor of Westark dismissing the entire case and Woodis
appealed. We affirm.

                                 I. BACKGROUND

        Ms. Woodis enrolled as a nursing student at Westark to pursue her Licensed
Practical Nurse degree (“LPN”). In her third semester in the program, the police
arrested Woodis for attempting to obtain a controlled substance with a fraudulent
prescription. On October 11, 1996, Dr. Sandi Sanders, then Vice President of Student
Affairs, suspended Woodis pending the outcome of the police investigation. Sanders
sent a letter to Woodis advising her of this decision and of her due process rights as set




      agrees to obey all rules and regulations formulated by the College as
      listed below and to obey all federal, state, and local laws.

             Students are expected to conduct themselves in an appropriate
      manner and conform to standards considered to be in good taste at all
      times. This implies a consideration for the welfare and reputation of the
      College and other students enrolled at the College. Students exhibiting
      behavior problems not compatible with good citizenship can expect to be
      reprimanded, have certain restrictions imposed, or be denied the privilege
      to continue as students.

Joint App. at 5.

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forth in the Westark Student Handbook.2 Woodis appealed the decision to a five-
member disciplinary appeals committee, which upheld Woodis’ suspension.

       On February 24, 1997, Woodis pled nolo contendere to a misdemeanor offense
in connection with her criminal conduct. Shortly thereafter, Sanders notified Woodis
by letter that her suspension was permanent. With the help of legal counsel, Woodis
appealed this decision to a second disciplinary action committee and to the President
of Westark Joel Stubblefield. Both independently upheld the expulsion of Woodis.

      In a letter dated June 19, 1997, from Sanders to Woodis, Sanders notified
Woodis that the school would hold a new hearing to consider her expulsion. Noting
questions raised “concerning procedures used in connection with your due process
hearing,” Sanders stated that Woodis would have an opportunity to review all the
evidence introduced at the hearing, to be accompanied by counsel and to participate at


      2
       The Student Handbook provided in relevant part:

            To guarantee that the rights of Westark College students will be
      protected, the following procedure has been developed.

            The disciplinary action to be taken against a student will be
      determined by the vice president for student services. If the disciplined
      student feels the action taken was too severe, he or she may appeal to a
      five-member Disciplinary Appeals Committee. . . . The committee may
      uphold, reduce, or reverse the decision of the vice president for student
      services.

             Both the student and the vice president for student services have
      the right to appeal the committee’s decision to the president [who] may
      uphold, reduce, or reverse the decision of the vice president for student
      services and the Disciplinary Appeals Committee.

Jt. App. at 30.

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the hearing. In addition, Sanders explained that the decision of the new disciplinary
committee would supersede that of the first committee which had considered her
appeal. On July 16, 1997, the new committee unanimously affirmed the decision to
expel Woodis from the Westark nursing program.

        Woodis subsequently filed suit. After the conclusion of discovery, Woodis filed
a motion for summary judgment. The district court denied the motion, granted
judgment as a matter of law to Westark and dismissed Woodis’ suit. Woodis timely
filed the appeal before this court. We review de novo a grant of judgment as a matter
of law. See Sip-Top, Inc. v. Ekco Group, Inc., 86 F.3d 827, 830 (8th Cir. 1996).


                                   II. DISCUSSION

      Woodis brings her claim pursuant to 42 U.S.C. § 1983.3 A successful § 1983
plaintiff must demonstrate deprivation of a constitutional right by an individual acting
under “color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Neither party
questions whether Westark acted under color of state law in expelling Woodis. Rather,
the parties dispute whether Westark violated Woodis’ constitutionally protected, due
process rights.




      3
       Section 1983 provides in relevant part:

      Every person who, under color of any statute, ordinance, regulation,
      custom, or usage, of any State . . . subjects, or causes to be subjected, any
      citizen of the United States . . . to the deprivation of any rights, privileges,
      or immunities secured by the Constitution and laws, shall be liable to the
      party injured in an action at law, suit in equity, or other proper proceeding
      for redress . . . .

42 U.S.C. § 1983.

                                            -4-
        In examining Woodis’ § 1983 claim, certain principles particular to the school
setting guide our analysis. Although students do not “shed their constitutional rights .
. . at the school house gate,” Tinker v. Des Moines Independent Community School
Dist., 393 U.S. 503, 506 (1969), the Supreme Court has observed that “maintaining
security and order in the schools requires a certain degree of flexibility in school
disciplinary procedures, . . . .” New Jersey v. T.L.O., 469 U.S. 325, 340 (1985).
Given the flexibility afforded schools in this area, we must “enter the realm of school
discipline with caution,” Stephenson v. Davenport Community School Dist., 110 F.3d
1303, 1306 (8th Cir. 1997), and we must exercise “care and restraint” in reviewing
Westark’s discretionary decision to expel Woodis from the school’s nursing program.
Epperson v. Arkansas, 393 U.S. 97, 104 (1968).

       Turning to the specific arguments presented to this court on appeal, Woodis
asserts that the Standards of Conduct are void-for-vagueness, as they do not provide
adequate notice to Westark students of the proscribed conduct under the school’s rules.
In addition, Woodis contends that Westark violated her procedural due process rights
by granting the vice president of student affairs too much discretion in determining the
appropriate punishments for wayward Westark students. The court addresses these
arguments in turn.

                               A. 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 violates the Constitution in two
significant respects. See Stephenson, 110 F.3d at 1308 (citations omitted). Such a
regulation or enactment fails, (1) to define the offense with sufficient definiteness that
ordinary people can understand prohibited conduct; and (2) to establish standards to
permit police to enforce the law in a non-arbitrary, non-discriminatory manner. See
Kolender v. Lawson, 461 U.S. 352, 357 (1983). In a facial vagueness challenge, an

                                           -5-
enactment reaching a substantial amount of constitutionally protected conduct may
withstand constitutional scrutiny only if it incorporates a high level of definiteness. See
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494
(1982); see also Video Software Dealers Ass'n v. Webster, 968 F.2d 684, 689 (8th Cir.
1992) (citation omitted). An enactment imposing criminal sanctions or implicating
constitutionally protected rights demands more definiteness than one which regulates
the economic behavior of businesses, Hoffman Estates, 455 U.S. at 498-99, or the
conduct of students in the school setting. See Bethel Sch. Dist. No. 403 v. Fraser, 478
U.S. 675, 686 (1986) (“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.”).

        In examining a facial challenge, this court must first “determine whether the
enactment reaches a substantial amount of constitutionally protected conduct.” Hoffman
Estates, 455 U.S. at 494. Where the enactment does not reach constitutionally
protected conduct, “the overbreadth challenge must fail[,]” id., and the complainant
may succeed in a vagueness challenge “only if the enactment is impermissibly vague
in all of its applications.” Id. at 495. Pursuing this line of analysis, the Supreme Court
cautioned courts to “examine the complainant’s conduct before analyzing other
hypothetical applications of the law[,]” id., because “[a] plaintiff who engages in some
conduct that is clearly proscribed cannot complain of the vagueness of the law as
applied to . . . others.” Id. Therefore, “vagueness challenges that do not involve the
First Amendment must be examined in light of the specific facts of the case at hand and
not with regard to the statute's facial validity.” United States v. Nadi, 996 F.2d 548,
550 (2d Cir. 1993) (citing Chapman v. United States, 500 U.S. 453, 467 (1991)).

      Applying these principles to this case, we conclude at the outset that the
Standards do not threaten to inhibit the exercise of protected First Amendment rights.


                                           -6-
See Hoffman Estates, 455 U.S. at 494. Woodis did not contend in her motion for
summary judgment, or in her brief to this court, that First Amendment rights were at
issue in this case. In fact, Woodis conceded at oral argument that this case does not
implicate First Amendment liberties. Our review of the record supports this conclusion.
This case does not involve a challenge to a school disciplinary decision arising from a
student’s exercise of his or her right to free speech. Compare Fraser, supra, 478 U.S.
675 (upholding the suspension of a student as punishment for giving an obscene speech
at a school assembly). Nor does Woodis’ conduct qualify as any other type of
protected First Amendment expression. See Stephenson, supra, 110 F.3d 1303. The
relevant conduct under review here--fraudulent procurement of a controlled substance--
constitutes criminal behavior, without First Amendment protection.

       Having determined that this vagueness challenge does not involve First
Amendment rights, the court next must discern whether the Standards violate the due
process clause as applied to the specific facts of this case. See Hoffman Estates, 455
U.S. at 495, n. 7; Nadi, 996 F.2d at 550. Woodis may only succeed in an "as applied"
vagueness challenge by “demonstrat[ing] that the [enactment] is impermissibly vague
in all of its applications.” Hoffman Estates, 455 U.S. at 497. To withstand a facial
challenge, an enactment must define the proscribed behavior with sufficient particularity
to provide a person of ordinary intelligence with reasonable notice of prohibited
conduct and to encourage non-arbitrary enforcement of the provision. Kolender, 461
U.S. at 357. In an "as applied" analysis, we must determine whether the enactment
here, the Standards, were sufficiently precise to notify Woodis that her criminal act
constituted unacceptable conduct that could lead to expulsion. Woodis cannot maintain
a vagueness claim if we determine that she engaged in conduct clearly proscribed by
the Standards. See Hoffman Estates, 455 U.S. at 495.

      Woodis focuses her vagueness challenge on the phrases “good taste,”
“appropriate manner,” and “good citizenship,” the key terms in the Standards defining
acceptable conduct under the Westark school rules. Woodis contends that these

                                          -7-
phrases do not provide the Westark students with notice of proscribed behavior. Nor
do they limit the discretion of the Westark administrators in making disciplinary
decisions, essentially allowing the school administration to engage in ad hoc,
discriminatory enforcement of the school rules.

      In response, Westark cites Felton v. Fayette School Dist., 875 F.2d 191 (8th Cir.
1989), for the proposition that the phrase “good citizenship” is at least sufficiently
precise to place a student on notice that criminal conduct will subject that student to
disciplinary action. In Felton, the court rejected a vagueness challenge to a school rule
conditioning enrollment in an auto mechanics vocational program on “good
citizenship.”4 The Felton court concluded the student’s conduct, stealing auto parts,
was inconsistent with “good citizenship,” and that the school had properly excluded
him from the activity.5 Felton suggests that a standard based on “good citizenship”
apprises the "ordinary" student that criminal conduct may result in disciplinary action,
especially where, as here, the criminal conduct related to the student’s area of study.
See Felton, 875 F.2d at 193 (holding that the high school’s rule “appears particularly
well-founded when applied to a student who seeks readmittance to an off-campus auto
mechanics program after having been involved in the theft of auto parts”).



      4
       Because the district court did not address the Felton plaintiff’s vagueness
challenge, this court considered and rejected the claim only “[t]o the extent this
argument has been raised.”
      5
          The court described the Fayette High School rule as follows:

      Felton’s categorical statements pinpoint the essence of Fayette’s rule:
      "[t]he facts in this situation are that [Fayette] require[s] good citizenship
      for [its] vocational programs." This requirement means a student must
      "be a good citizen in the community and [behave] in a way that brings
      credit to the school.”

Felton, 875 F.2d at 192 (internal citations omitted).

                                           -8-
       Moreover, in Esteban v. Central Missouri State College, 415 F.2d 1077 (8th Cir
1969), we rejected a vagueness challenge to a school regulation which instructed
students “to abide by the rules and regulations of the college as well as all local, state
and federal laws.” Esteban, 415 F.2d at 1082. Like the regulation in Esteban, the
Standards specifically state that “by the act of registering, the student agrees to obey
all rules and regulations formulated by the College as listed below and to obey all
federal, state and local laws.” (Jt. App. at 5) (emphasis added). The Standards
provide Westark students with clear and precise direction: criminal conduct is
inconsistent with the behavior expected of Westark students. Woodis does not dispute
that she pled nolo contendere to a misdemeanor charge, and, therefore, that she violated
state law. The record also shows that Westark expelled Woodis for engaging in this
criminal conduct.6 In light of the express provision in the Standards prohibiting criminal
conduct by students, we conclude that as applied to Woodis, the Standards gave
Woodis notice that her conduct would subject her to discipline and, more importantly,
placed meaningful bounds on the enforcement decisions of the Westark



      6
       In a letter from Mr. Stubblefield to Woodis, upholding the decision to expel her,
Stubblefield states:

      After a careful review of the file concerning this matter, I have decided to
      uphold Ms. Woodis’ suspension. Our records show that Ms. Woodis was
      arrested on October 10, 1996 for obtaining controlled substance by fraud.
      Westark notified Ms. Woodis on October 11, 1996, that she had been
      suspended from all courses pending the outcome of police investigations.
      On February 24, 1997, Ms. Woodis entered a negotiated plea of nolo
      contendere. The Disciplinary Appeals Committee met in April and
      reviewed evidence and recommended that the suspension be upheld. In
      accordance with policy set out in Westark’s Student Handbook, we have
      afforded your client with due process and considered her appeal.

Jt. App. at 37.


                                           -9-
administrators. Therefore, Woodis’ void-for-vagueness claim must fail in the context
of this case where the facts do not implicate First Amendment rights.

                            B. Procedural Due Process

       In her second claim, Woodis contends that Westark did not afford her
constitutionally adequate procedural due process. At the outset, we note that the
expulsion proceedings entitled Woodis to some level of due process. See Goss v.
Lopez, 419 U.S. 565 (1975) (holding that a student facing a ten-day scholastic
suspension was entitled to due process). In Jones v. Snead, 431 F.2d 1115, 1117 (8th
Cir. 1970), this court set forth a standard for procedural due process in the school
setting:

      We have indicated that procedural due process must be afforded a student
      on the college campus “by way of adequate notice, definite charge, and
      a hearing with opportunity to present one’s own side of the case and with
      all necessary protective measures.” Esteban, supra, 415 F.2d at 1089.
      But, also, we have cautioned “that it is not sound to draw any analogy
      between student discipline and criminal procedure . . . .”


Jones, 431 F.2d at 1117 (citation omitted). Guided by these principles, we conclude
that Westark granted Woodis sufficient procedural due process. Although Woodis
contends that the vice president of student affairs possessed excessive discretion in
fashioning disciplinary action for students, the record indicates that the process
provided to Woodis sufficiently protected her due process rights: Woodis appealed
Sanders' decision to an independent disciplinary action committee and then to the
president of the college; after denying her appeals, the college granted Woodis a second
disciplinary hearing: Woodis had an opportunity to consult with counsel, examine
evidence introduced against her and participate in the hearing, and, once again,



                                         -10-
the second disciplinary committee upheld her expulsion. On this record, we reject
Woodis’ procedural due process claim.

                               III. CONCLUSION

      Accordingly, we affirm the district court's judgment of dismissal.

      A true copy.


            Attest:


                     CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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