Further, this court notes that both Perkins and Terry Robinson
(Robinson) attended the November 8, 1999, School Board meeting. Perkins
and Robinson were the only African American members of the School Board
at the time in question. Both Perkins and Robinson voted against the
expulsion of the students on November 8. Robinson was never called by the
students to testify at trial as an adverse witness. As a consequence, no
testimony was presented by either African American member of the School
Board that the School Board's decision was racially motivated. Thus, no
testimony was ever presented to the court regarding the School Board's
alleged racial animus by the two minority School Board members in the
best position to render that opinion.
The students assert that a "valid inference can be raised by large
statistical disparities in racial situations including discipline that a
given School District and/or School Board has discriminated
intentionally." However, the cases cited by the students do not support
this proposition. In fact, the law is clear that a claim of racial
discrimination and violation of equal protection cannot be based upon
mere statistics standing alone. Chavez v. Illinois State Police,
27 F. Supp.2d 1053, 1069 (N.D.Ill. 1998). In United States v. Armstrong,
517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), the United States
Supreme Court concluded that a study which showed that most persons
prosecuted for crack cocaine trafficking were black did not constitute
some evidence tending to show the existence of the essential elements of
a selective prosecution claim (a violation of equal protection).
Armstrong, 517 U.S. at 470, 116 S.Ct. 1480. The Supreme Court held that,
to "establish a discriminatory effect in a race case, the claimant must
show that similarly situated individuals of a different race were not
prosecuted." Armstrong, 517 U.S. at 465, 116 S.Ct. 1480. Accordingly, the
claim in Armstrong failed because the "study failed to identify
individuals who were not black and could have been prosecuted for the
offenses for which respondents were charged, but were not so prosecuted."
Armstrong, 517 U.S. at 470, 116 S.Ct. 1480. The decision in Armstrong is
applicable to civil cases where plaintiffs claim discrimination on the
basis of race. Chavez, 27 F. Supp.2d at 1066. In a race case, "plaintiffs
must show that similarly situated individuals of a different race were
not subjected to "the challenged conduct." Chavez, 27 F. Supp.2d at
Here, in this case, the students have not even attempted to show that
Caucasian students who engaged in similar conduct were not subjected to
the same discipline. See Armstrong, 517 U.S. at 465, 116 S.Ct. 1480;
Chavez, 27 F. Supp.2d at 1066. In fact, the Summary prepared by Arndt
showed that Caucasian students had been expelled for physical
confrontations or fighting. The length of these expulsions ranged from a
period to five months to a period of one year, three months. Perkins'
testimony confirmed that the School Board has expelled Caucasian students
Moreover, none of the Caucasian students who were expelled for physical
confrontations or fighting can be considered "similarly situated" to the
students involved in this case. Arndt testified that no other fight
listed in the Summary even came close to the magnitude of the September
17, 1999, fight. The videotape speaks volumes on this issue. Boehm
testified that it was the only fight of this magnitude he had seen in 27
years in education. Accordingly, because the students failed to show that
any similarly situated Caucasian students were treated less harshly, they
failed to establish that race played any role in the School Board's
D. ZERO TOLERANCE POLICY
In their Amended Complaint, the students alleged that the School
Board's "no tolerance/zero tolerance policy for violence" violated their
procedural and substantive due process rights.
The evidence presented at trial does not support the students' claim.
The evidence showed that, on August 25, 1998, the School Board adopted a
resolution which stated that it joined other school districts, law
enforcement and mental health agencies "in declaring a no-tolerance
position on school violence, and encourages all citizens to make a
commitment to violence-free schools." Arndt testified that this
resolution was a political statement and had no impact on student
expulsion cases. Arndt's testimony was corroborated by Perkins, the
students' witness. Perkins testified that he voted in favor of the
"no-tolerance" resolution on August 25, 1998. He testified that a
resolution such as this does not have the same impetus or force as a
policy. Perkins said he did not "spend a lot of time thinking about
resolutions." Perkins further candidly "and truthfully testified that he
could not say that he thought about the August 25, 1998, resolution when
he was voting on student expulsions. Most importantly, Perkins testified
that he did not recall any discussion by the School Board about the
resolution during any expulsion hearing. Moreover, "Dr. Amprey, the
students' expert witness, testified that he reviewed the documents
related to the discipline of these students prior to trial. Dr. Amprey
stated that, in reviewing all of the documents, he did not recall ever
seeing the term "zero tolerance." He further stated that he had "come to
know `zero tolerance' as a special approach or program either here or
somewhere else . . ., that would be a part of a, a philosophy and an
organized approach as opposed to people just saying they have no
tolerance for something."
From the testimony presented at trial, including the testimony of Dr.
Amprey and School Board member Perkins, the court finds nothing in the
record indicating that the August 25, 1998, resolution constituted a
"zero tolerance policy."
E. GANG-LIKE ACTIVITY
The students also alleged that Rule 10, the provision prohibiting
"gang-like activities" in the Discipline Policy, is void for vagueness
and violates the due process guarantee of adequate notice of proscribed
conduct. Rule 10 states:
As used herein, the phrase "gang-like activity" shall
mean any conduct engaged in by a student 1) on behalf
on 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 anyway 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.
At trial, Dr. Amprey testified that, in his opinion, "the rule in and of
itself is subject to so many varied definitions of the term `gang' that
renders itself, for lack of a better term, useless in the sense of
clearly defining or of pointing out that someone is involved in gang
activity." In addition, both Goetter and Arndt testified that definitions
were not provided for the terms used in Rule 10. Relying on Stephenson
v. Davenport Community School Dist., 110 F.3d 1303 (8th Cir. 1997), and
City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67
(1999), the students contend that Rule 10 has serious constitutional
deficiencies and is fatally vague on its face. The students argue that,
because the School Board relied upon Rule 10 in its decision to expel
them, the expulsions must be reversed.
Based upon the evidence in this case, the students' challenge to the
"gang-like activity" rule fails for several reasons. Most importantly,
this court notes that "`[g]iven 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.'"
Stephenson, 110 F.3d at 1308 (quoting Bethel School Dist. No. 403 v.
Fraser, 478 U.S. 675, 686, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986)); see
also Betts v. Board of Educ. of City of Chicago, 466 F.2d 629, 635 (7th
Cir. 1972); Linwood v. Board of Educ. of City of Peoria, School Dist.
No. 150, 463 F.2d 763, 767 (7th Cir. 1972), cert. denied, 409 U.S. 1027,
93 S.Ct. 475, 34 L.Ed.2d 320 (1972).
In Morales, defendants who were convicted of violating Chicago's gang
loitering ordinance and were sentenced to jail terms appealed, arguing
that the ordinance was unconstitutionally vague. The Illinois Supreme
Court found that the ordinance was unconstitutionally vague, and the
United States Supreme Court agreed and affirmed. Morales, 527 U.S. 41,
119 S.Ct. 1849, 1863, 144 L.Ed.2d 67 (1999). The Court stated that "the
ordinance does not provide sufficiently specific limits on the
enforcement discretion of the police `to meet constitutional standards
for definiteness and clarity.'" Morales, 119 S.Ct. at 1863 (quoting City
of Chicago v. Morales, 177 Ill.2d 440, 227 Ill.Dec. 130, 687 N.E.2d 53,
64 (1997)). However, the fact that the Supreme Court concluded that a
gang loitering ordinance which imposes criminal sanctions is
unconstitutional simply does not mean that a school disciplinary rule,
even if similar, is likewise unconstitutional. As noted, a school
disciplinary rule does not need to be as detailed as a statute or
ordinance, which imposes criminal sanctions. See Fraser, 478 U.S. at
686, 106 S.Ct. 3159; Stephenson, 110 F.3d at 1308. Accordingly, the
decision in Morales has no application to this case.
This court also concludes that the students' reliance on Stephenson is
misplaced. In Village of Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), the United
States Supreme Court cautioned courts to "examine the complainant's
conduct before analyzing other hypothetical applications of the law."
Hoffman Estates, 455 U.S. at 495, 102 S.Ct. 1186; see also Woodis v.
Westark Community College, 160 F.3d 435, 438 (8th Cir. 1998). This is
because "[a] plaintiff who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as applied to . .
. others." Hoffman Estates, 455 U.S. at 495, 102 S.Ct. 1186; see also
Woodis, 160 F.3d at 438. Therefore, vagueness challenges which 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 disciplinary rule's
facial validity. Woodis, 160 F.3d at 438-39. The students here have not,
and cannot, argue that their involvement in a violent fight in any way
implicates their First Amendment Rights. Consequently, before engaging in
any analysis of the facial validity of Rule 10, this court must determine
whether the students' conduct clearly violated the rule in question.
In each of the students' hearings before Dr. Cooprider, evidence was
presented from Police Officer Doug Taylor. This evidence showed that an
incident occurred on September 3, 1999, between two members of rival
gangs, the Vice Lords and the Gangster Disciples. The evidence further
showed that the fight on September 17, 1999, was a continuation of this
incident and was a fight between members of these two rival gangs.
Plaintiffs presented nothing at trial to contradict this evidence.
Obviously, from this evidence, Dr. Cooprider and the School Board could
clearly find that the students involved violated the prohibition against
"gang-like activity." Here, unlike the situation in Stephenson, the
evidence presented before Dr. Cooprider and the School Board showed that
the students engaged in conduct that was clearly proscribed by Rule 10.
Cf. Stephenson, 110 F.3d at 1305.*fn1 As
a result, the students cannot complain that Rule 10 may be vague as
applied to others. See Woodis, 160 F.3d at 438-39.
Moreover, this court notes that the students were charged with
violations of two other rules: Rule 13, prohibiting physical
confrontation or violence with staff or students; and Rule 28,
prohibiting any other acts that endanger the well-being of students,
teachers or other school employees. Both of these rules state that a
"recommendation for expulsion" may be made for a first or subsequent
violation of the rule. The evidence clearly supported Dr. Cooprider's
finding that "there is ample evidence that the incident may fairly be
characterized as violent physical confrontation, and certainly as actions
which endangered students, school personnel, and school visitors." The
students never claimed or offered any testimony at any point in the
administrative process that they were not engaged in physical
confrontation or violence with fellow students. Nor was evidence
presented denying that the conduct of the students in this case endangered
the well-being of fellow students, teachers or other school employees.
The students clearly violated these two rules and substantial evidence
was presented in support of the School Board's action on these matters.
The violation of these two rules alone would be a sufficient basis for
the School Board to expel the students.
Based upon the foregoing analysis, this court concludes that the
students have failed to meet the burden of proving their claims.
Accordingly, the students are not entitled to a permanent injunction. See
Plummer, 97 F.3d at 230. The students will remain expelled for the
balance of the 1999-2000 school year. They may be readmitted beginning
with summer school, June 2000.
IT IS THEREFORE ORDERED THAT:
(1) Judgment is entered in favor of Defendants and against the students
on all counts of the students' First Amended Complaint.
(2) All motions shown as pending in this case (#3, # 63, # 76) are
DENIED as moot.
(3) This case is terminated. The parties shall be responsible for their
own court costs.