"loiter" means "to delay with aimless idle stops and pauses" and "to remain in an area for no obvious reason." WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 703 (1986). It also is defined as "to linger aimlessly or as if aimlessly in or about a place," "to move in a slow, idle manner; make purposeless stops in the course of an . . . errand," "to waste time . . . ," and "to pass (time) in an idle or aimless manner . . . ." WEBSTER'S ENCYCLOPEDIC UNABRIDGED DICTIONARY OF THE ENGLISH LANGUAGE 843 (1989). These simple dictionary definitions of loitering are sufficiently clear to place an average student on notice of what conduct is prohibited.
Moreover, like the ordinance in Grayned, the high school's loitering rule is written specifically for the school context where the prohibited conduct is easily measured against the normal activities of the school. Grayned, 408 U.S. at 112. It cannot be said that the school does not maintain an important interest in students' affairs during their ingress or egress to and from school property. Further, the school may properly protect the property rights of those living in the surrounding homes by exercising its power in loco parentis to guide student behavior in such a way as to avoid vandalism or harm to the students. Schools are saddled with a vital responsibility to transmit community values and to promote respect for authority as well as for social, moral, or political values. Pico, 457 U.S. at 864. The scope of school officials' management of student conduct is "comprehensive. Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 507, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969). Moreover, the loitering rule is crafted to apply to a specified area and does not merely prevent loitering on the public streets in general. Given the particular school context of the loitering rule, the disciplinary rule gives fair notice to those to whom it is directed and clearly delineates its reach in terms of common understanding. Grayned, 408 U.S. at 112.
Wiemerslage attacks the use of the phrase "Hamlin Gate Area." Although conceding that it is common knowledge within the school population that the Hamlin Gate is the particular fence gate that is situated adjacent to the public street known as "Hamlin Avenue," Wiemerslage questions whether the area covered by the disciplinary rule extends to the fence-gate proper or for some distance beyond the fence away from the school property. The court does not find the term troubling. "Condemned to the use of words, we can never expect mathematical certainty from our language." Id. at 110. "The fertile legal 'imagination can conjure up hypothetical cases in which the meaning of [disputed] terms will be in nice question.'" Id. at 110 n.15 (quoting American Communications Ass'n v. Douds, 339 U.S. 382, 412, 94 L. Ed. 925, 70 S. Ct. 674 (1950)). The Supreme Court has held that the term "near the courthouse" is not unconstitutionally vague, Cox v. Louisiana, 379 U.S. 559, 568-69, 13 L. Ed. 2d 487, 85 S. Ct. 476 (1965), and has upheld a statute prohibiting picketing "in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from" a courthouse as not unconstitutionally vague. Cameron v. Johnson, 390 U.S. 611, 616, 20 L. Ed. 2d 182, 88 S. Ct. 1335 (1968). Similarly, "Hamlin Gate Area" is not vague.
The concern that the loitering rule places unfettered discretion in the hands of school officials is tenuous. School officials are afforded broad discretion in enforcement of school codes because of the important interests and responsibilities affiliated with school administration. Pico, 457 U.S. at 863-64. There are no specific standards governing the exercise of the discretion granted school officials by the loitering rule, but the disciplinary rule does not permit or encourage arbitrary and discriminatory enforcement. All students found lingering, idling, or lolling in the Hamlin Gate Area are subject to the rule; and like the word "near" in Cox, the disciplinary rule allows for proper administrative discretion in the limited control of the areas in the immediate vicinity of the school. See Cox, 379 U.S. at 569. The students' common understanding of the Hamlin Gate Area provides ample notice that they are not to remain in this area for any period of time longer than is necessary to enter or exit the school and proceed to their destinations.
The court now turns to Wiemerslage's procedural due process challenge: that the loitering disciplinary rule fails to provide for judicial review. The complaint reveals that Wiemerslage and his parents received formal notice of the charges and obtained two informal hearings and one formal hearing into the matter. The formal hearing allowed for the presence of an attorney. Wiemerslage has received more process than was due a three-day suspension. Linwood, 463 F.2d at 768-69 (students may be suspended for seven days or less without hearing); see also Goss v. Lopez, 419 U.S. 565, 583, 42 L. Ed. 2d 725, 95 S. Ct. 729 (1975) (due process does not mandate that hearings in connection with short suspensions must require counsel, cross-examination, or calling of witnesses); Broussard v. School Board of City of Norfolk, 801 F. Supp. 1526, 1532 (E.D. Va. 1992) (plaintiff supplied more than constitutionally mandated procedures for one-day suspension by receiving notice and opportunity to rebut school's findings).
To impose in each such case even truncated trial-type procedures might well overwhelm administrative facilities in many places and, by diverting resources, cost more than it would save in educational effectiveness. Moreover, further formalizing the suspension process and escalating its formality and adversary nature may not only make it too costly as a regular disciplinary tool but also destroy its effectiveness as part of the teaching process.
Goss, 419 U.S. at 583. As such, Wiemerslage's claim that judicial review is required for this suspension fails.
Turning to Wiemerslage's free speech and assembly challenge, the court can summarily dispose of the issue. Wiemerslage does not allege the loitering rule is specifically aimed at regulating the content of speech nor does he successfully allege that the rule was enforced in his case to suppress a particular message he was attempting to promulgate. The complaint reveals that Wiemerslage and his friends were not assembled to protest, demonstrate, march, parade, or rally, but were instead speaking of upcoming recreation. The court recognizes that "personal intercommunication among the students" may enjoy limited protection. Tinker, 393 U.S. at 512. In any event, schools can place reasonable regulations on the time, place, or manner of students' exercise of first amendment rights when school activities are implicated. Grayned, 408 U.S. at 115. Given the discretion afforded school administrators and their limited control over the ingress and egress of students from school property, the prohibition against loitering in the Hamlin Gate Area is reasonable. It is apparent from the complaint that the school authorities determined that loitering at the gate interferes with the safe and orderly passage of students to and from the school grounds. As the August 1992 letter also indicates, school authorities could reasonably forecast that the property rights of neighbors may be disrupted in light of the complaints.
Rather than a work of painstaking particularity, the language of the loitering disciplinary rule is indeed flexible and broad. But flexibility and reasonable breadth are acceptable as long as it is clear what the rule as a whole prohibits. See Grayned, 408 U.S. at 111. The loitering rule delineates with sufficient clarity the conduct prohibited by the school officials and thus gives fair notice to students that they are not to stand in the Hamlin Gate Area but are to proceed through it. The suspension, furthermore, was accomplished through the appropriate procedures, and Wiemerslage fails to allege a violation of his first amendment rights to free speech or assembly.
The court grants the defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for the reasons discussed above.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court