The rise of gangs has been a major problem. In June of 2000, the Los
Angeles Police Department (LAPD) issued statistical evidence of the
problems associated with gang violence. At the time, police were able to
account for 407 gangs in Los Angeles whose combined membership totaled
over 64,500. These gangs wreaked havoc in homes, communities, and
schools where criminal activities such as gang-related homicide and
attempted homicide increased more than 130 percent between 1999 and
2000. As a result of statistics such as these and the fact that a large
number of gang members are under the age of 18, school districts around
the United States attempted to reduce gang violence by regulating which
types of symbols students could display during school. Specifically,
school officials banned gang symbols.
If you were a school official, how easy or difficult would it be to
enforce this ban? Look at the tattoo below. Would you be able to say
whether this was a gang symbol?
In 1969, the Supreme Court of the United States ruled on the case of
Tinker v. Des Moines. The Court decided that a student's constitutional
right to freedom of expression existed in schools as long as the
expression did not cause - or could not reasonably be predicted to cause
- a substantial disruption to the work of the school. At the time, the
expression being considered was the right to symbolic speech through the
wearing of armbands to protest U.S. involvement in the Vietnam War.
Now, over 30 years later, tattoo art has become an accepted form of
symbolic speech. In October of 2000, Massachusetts Judge Barbara Rouse
recognized the First Amendment implications of tattooing. In a case that
struck down a 38-year old ban on tattooing, she noted, "persons obtain
tattoos to demonstrate commitment to other persons, to institutions, to
religious beliefs, and to political and personal beliefs. The medium on
which the drawn image appears should not be relevant when determining
whether something is 'speech'; the tattoo itself is symbolic speech
deserving of First Amendment protection."
If Judge Rouse is correct, it would seem that the right of students
to display tattoos would be governed by the standard applied to armbands
Read the case brief below and determine whether the U.S.
Court of Appeals for the Eighth Circuit applied the Tinker standard
toward students' tattoos.
Stephenson v. Davenport Community School District
In 1992, Brianna Stephenson was an honor roll student at West High
School who teachers described as "conscientious and diligent." During
this time, gang activity at West had become a significant problem, with
gang members using school grounds to intimidate and recruit other
students. In an attempt to combat the escalating gang activity, the
school district created a new rule that said "gang-related activities
such as display of 'colors,' symbols, signs, etc., will not be tolerated
on school grounds. Students in violation will be suspended from school
and/or recommended to the Board for expulsion."
Brianna went to visit her counselor in August of that year to discuss
routine schedule matters. During the meeting, the counselor noticed a
small cross tattoo on her hand. After the counselor, the assistant
principal, the school's police liaison officer, and another officer
ruled that the tattoo was a gang symbol, Brianna was told that she would
be suspended with a recommendation for expulsion if she did not remove
or change the tattoo.
Although Brianna maintained that her cross tattoo was over two years
old and she had no gang affiliation, the school district stood by both
its policy and disciplinary decision. After undergoing painful and
expensive laser surgery to remove the tattoo, Brianna was allowed to
return to school. Upon her return, she filed a lawsuit against the
school district, claiming that her First Amendment right to free speech
was violated. The United States District Court dismissed her case, but
the U.S. Court of Appeals for the Eighth Circuit heard her appeal.
Question presented to the court
The Eighth Circuit Court of Appeals ruled that the school district's
policy was unconstitutional. Specifically, the Court found fault with
two characteristics of the policy.
According to the Court, the school's policy was too vague because it
did not give students enough information about exactly what
conduct/expression was prohibited.
Furthermore, the Court held that such a vague policy invited
unconstitutional, arbitrary, and discriminatory enforcement because it
allowed school administrators, police officers, judges, and juries to
determine on a case-by-case basis exactly which colors, symbols, signs,
etc., violated the policy.
You are a member of the Davenport Community School District's School
Board. As a board member, it is your job to create and approve specific
school policies. With your fellow board members, revise the school's
policy prohibiting the display of gang symbols so that it is
"Gang-related activities such as display of 'colors', symbols, signs,
etc., will not be tolerated on school grounds. Students in violation
will be suspended from school and/or recommended to the Board for
Amend the policy to make it less vague.
What specific conduct and symbols would you prohibit?
What guidelines would you provide school officials with to ensure
that only those students who were truly advertising gangs would be
Specifically, how would you define "gang?"
What exact symbols would be prohibited?
Which colors/color combinations are gang-related?
Write your amended district policy below: