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WIEMERSLAGE v. MAINE TWP. HIGH SCH. DIST. 207

June 11, 1993

KURT R. WIEMERSLAGE, through his Natural Guardian, FRANK R. WIEMERSLAGE, Plaintiff,
v.
MAINE TOWNSHIP HIGH SCHOOL DISTRICT 207, THE BOARD OF EDUCATION OF MAINE TOWNSHIP HIGH SCHOOL DISTRICT 207, JAMES L. ELLIOTT, Superintendent of MAINE TOWNSHIP HIGH SCHOOL DISTRICT 207, THOMAS J. CACHUR, Principal of MAINE TOWNSHIP HIGH SCHOOL SOUTH, JUDY BOVENMYER, Dean of Students of MAINE TOWNSHIP HIGH SCHOOL SOUTH, OFFICER THOMAS SWOBODA, Security Officer at MAINE TOWNSHIP HIGH SCHOOL SOUTH, JOHN DOE and JANE DOE, Defendants.



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is defendants' motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For reasons stated below, the motion is granted.

 FACTS

 On September 23, 1992, after classes let out at roughly 3:05 p.m., plaintiff Kurt Wiemerslage ("Wiemerslage"), a high school freshman, exited Maine Township High School South and for a short period of time stood with a friend in an area immediately adjacent to the school that is commonly referred to as the Hamlin Gate Area, an entrance and exit area located near the fieldhouse on the east side of the school's campus. Wiemerslage stood on the public sidewalk, outside of the school property, and waited as two other students joined him. The group congregated for a brief time, discussing their immediate plans, when defendant Officer Thomas Swoboda ("Swoboda") approached them.

 Swoboda, a security officer retained by defendant Maine Township High School District 207, had observed the four students on the public way. The officer, after taking their names and other information, reported this activity to the school's superintendent, indicating that the students were loitering near a garage located halfway between Hamlin Avenue and Home Avenue. He cited them for violating the school's disciplinary rule against loitering in the Hamlin Gate Area.

 The Maine Township High School District 207's manual outlining disciplinary procedures states, "Students are not permitted in off-limits areas at any time. The designation of these areas will be presented to students by the school administration." In August, 1992, defendant principal Thomas J. Cachur ("principal Cachur") sent a letter to parents which stated that "the Hamlin Gate area continues to be designated as an off-limits area." The letter continued, "While students can use this area to enter or leave the school campus before and after school, loitering is not permitted in this area. A three-day suspension will be given to any student who is present in this area." The Hamlin Gate Area was placed off limits to students because community members in the area had complained about students' lack of respect for their property and disregard for traffic safety regulations.

 The next day, defendant Judy Bovenmyer ("dean Bovenmyer"), the Dean of Students at the high school, advised Wiemerslage that he was observed in violation of the loitering rule. Dean Bovenmyer informed Wiemerslage that he was to be suspended from school for three days for loitering in the Hamlin Gate Area and advised his parents of the incident, the discussion, and the suspension. Wiemerslage's parents later met with dean Bovenmyer to review the matter after receiving the notification letter from her. A second informal hearing was also conducted, this time with principal Cachur. Following the second hearing, Wiemerslage's father requested a formal hearing into the suspension and in October 1992 a formal hearing was conducted. After the formal hearing, Wiemerslage's parents were notified that the Board of Education of Maine Township High School District 207 let the suspension stand.

 Wiemerslage filed a single count complaint alleging that the defendants violated his rights to free speech and assembly under the first amendment, applicable through the fourteenth amendment, and also that the school's loitering rule violates due process under the fourteenth amendment. Wiemerslage claims in conclusory fashion that the defendants' aforementioned acts violated his right to exercise freedom of speech and assembly, and that defendants collectively acted with the intent of depriving Wiemerslage of these first amendment rights. Further, Wiemerslage maintains the disciplinary rule impermissibly controls the non-academic actions of school students on a public way beyond the boundaries of school property, is unconstitutionally vague on its face and as applied to his conduct, and fails to provide any procedural guidelines assuring prompt judicial review of a suspension.

 DISCUSSION

 On a motion to dismiss, the court accepts all well-pleaded factual allegations as true, as well as all reasonable inferences drawn from those allegations. Mid America Title Co. v. Kirk, 1993 U.S. App. LEXIS 12863, slip op. at 5 (7th Cir. 1993). Because federal courts simply require "notice pleading," Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 122 L. Ed. 2d 517, 113 S. Ct. 1160, 1163 (1993), this court construes pleadings liberally. See Powell Duffryn Terminals, Inc. v. CJR Processing, Inc., 808 F. Supp. 652, 654 & n.1, 655-56 (N.D. Ill. 1992). A complaint need not specify the correct legal theory nor point to the right statute to survive a motion to dismiss. Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1134-35 (7th Cir. 1992) (citing Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir. 1992)). Additionally, mere vagueness or lack of detail alone is not sufficient to justify a dismissal. Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir. 1985). Accordingly, a party fails to state a claim upon which relief may be granted only if that party can prove no set of facts upon which to grant legal relief. Ross v. Creighton Univ., 957 F.2d 410, 413 (7th Cir. 1992).

 Federal judicial intervention in the day to day operations of public schools is highly undesirable and requires significant restraint. Federal courts must not "intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values." Epperson v. Arkansas, 393 U.S. 97, 104, 21 L. Ed. 2d 228, 89 S. Ct. 266 (1968). The court will consider the complaint with these principles in mind.

 The primary challenge Wiemerslage mounts against the disciplinary rule disallowing loitering in the Hamlin Gate Area is that of vagueness. The vagueness doctrine guarantees that legal prohibitions will be clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 108, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972). If people of common intelligence must guess at an enactment's meaning and differ as to its application, the law is unconstitutionally vague and is void. Hynes v. Oradell, 425 U.S. 610, 620-22, 48 L. Ed. 2d 243, 96 S. Ct. 1755 (1976). Accordingly, an enactment must define the prohibited conduct with sufficient definiteness such that an ordinary individual understands just what conduct is prohibited and must define the prohibited conduct in a manner discouraging arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983); Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 31 L. Ed. 2d 110, 92 S. Ct. 839 (1972); Derby v. Town of Hartford, 599 F. Supp. 130, 134 (D. Vt. 1984).

 The court recognizes the potential vagueness of the word "loitering" and also the failure of the disciplinary rule to provide a definition that would cast the word in narrow terms. *fn1" Notwithstanding these concerns, vagueness considerations do not apply equally in all situations; the degree of clarity required of an enactment depends on the nature of the enactment. Village of Hoffman Estates v. Flipside Hoffman Estates, Inc., 455 U.S. 489, 498-99, 71 L. Ed. 2d 362, 102 S. Ct. 1186 (1982); Waldron, 723 F.2d at 1358 (Swygert, S.J., dissenting). Appropriately, school disciplinary regulations need not be drawn with the same precision of a criminal statute. Linwood v. Board of Education, 463 F.2d 763, 767 (7th Cir.), cert. denied, 409 U.S. 1027, 34 L. Ed. 2d 320, 93 S. Ct. 475 (1972); Soglin v. Kauffman, 418 F.2d 163, 168 (7th Cir. 1969); see also Shamloo v. Mississippi State Bd. of Trustees, 620 F.2d 516, 521-22 (5th Cir. 1980). The special needs of the school system warrant a broader sweep in school regulations than might be permissible in a criminal code. Further, the management of school affairs is left largely to the discretion of school boards. Board of Educ. v. Pico, 457 U.S. 853, 863-64, 102 S. Ct. 2799, 73 L. Ed. 2d 435 (1982). ...


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