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Student can pursue challenge of school’s gang-affiliation policy

By David L. Hudson Jr.
First Amendment scholar
11.18.09

A federal judge has ruled that a student can pursue a First Amendment claim against a New York high school that punished him for allegedly violating the school district's anti-gang policy.

The dispute began in February 2008, when Edwin Aleman, then a 10th grader at Bay Shore High School, allegedly asked another student, "Did you say MS was pussy?" Bay Shore School district officials said the comment referred to the violent criminal street gang MS-13, and suspended Aleman for five days. MS ("Mara Salvatrucha") originated in Los Angeles but has spread across the United States and Central America.

Aleman, a native of Honduras and a legal U.S. resident since 2006, denied making the comment, saying another student nearby had said it. But school officials slapped Aleman with a suspension for involvement in a “prohibited group affiliation,” “inciting violence,” and “insubordination.”

Administrators later held a hearing that included testimony from the dean of students but none from student witnesses to the alleged statement. In March 2008, the district declared Aleman guilty of violating the policy against “prohibited group affiliation,” which provides:

"Any activity, affiliation, and/or communication in connection with a non-school sanctioned club/group, including fraternal organizations or gangs, is prohibited.”

The district then increased Aleman’s punishment to a one-year suspension. However, in October 2008, the New York State education commissioner granted Aleman’s appeal, reinstated him and ordered his suspension annulled and expunged. Yet even after the suspension had been lifted, the district put Aleman on an “ineligible list” that barred him from joining the track team.

In February 2009, Aleman's mother, Litza Lopez, sued on her son's behalf in federal court, asserting numerous constitutional and statutory claims. Among them, she contended that district officials violated Aleman's First Amendment free-speech rights for suspending him for a comment he didn’t make and that the gang-affiliation policy was unconstitutionally vague.

The school district filed a motion to dismiss all of Aleman’s claims. On Nov. 9, 2009, U.S. District Judge Arthur D. Spatt for the Eastern District of New York issued his ruling in Lopez v. Bay Shore Union Free School District.

Spatt rejected Lopez and Aleman's free-speech claim about the alleged gang-related comment. A valid First Amendment claim, Spatt said, requires that a plaintiff has been punished for certain speech, and because Lopez argued that Aleman had never uttered the remark in question, he couldn't have engaged in constitutionally protected speech.

The judge was more receptive to Aleman’s challenge to the gang-affiliation policy. Spatt cited with favor federal court decisions in Stephenson v. Davenport Community School District (8th Cir. 1997) and Chalifoux v. New Caney Independent School District (S.D. Tex. 1997), in which school officials invalidated bans against gang-related symbols or attire. In Stephenson, the 8th U.S. Circuit Court of Appeals struck down a school policy barring “gang-related activities” in the context of a student's allegedly wearing a tattoo with a gang symbol. In Chalifoux, a federal judge threw out a school policy against gang-related attire that was applied to a student who wore rosary beads to school.

“The Court finds these courts’ reasoning to be persuasive and on point,” Spatt wrote. “Here, the challenged rule is even broader that the rules in Stephenson and Chalifoux, as it forbids all ‘affiliation, activity, and/or communication in connection with … a gang.’”

Spatt also noted that the “the rule could be applied to virtually any action or communication related to a ‘non-school sanctioned’ group, regardless of how benign the act or word.”

Paul L. Dashefsky, the Smithtown, N.Y.-based attorney who represents the student, told the First Amendment Center Online:

“The court’s denial of the First Amendment free-speech claim is mind-boggling. It seems that if you are protected from being punished for engaging in certain speech, then you also should be protected if you are regarded as engaging in certain speech.”

Dashefsky added that he “was always confident that the school’s code of conduct policy on affiliations was unconstitutionally vague and suspect.”

And he said, “I honestly think there is some racial stereotyping going in this case because this boy was from Honduras ... . Because the kid was Hispanic, wore blue clothing and had a bandanna in his pocket, [administrators] assume he is part of a violent gang. It is analogous to saying that because someone is Italian-American, they must be part of the mob.”


Related

School board bars Star of David necklace as possible gang symbol

Mississippi civil rights group plans legal action on behalf of student who tried to express religious views. 08.18.99

Ore. teens suspended for wearing crucifixes

School officials cite 'gang-related behavior' in discipline; boys say rosaries are gifts from their mothers. 02.29.08

First Amendment spirit fighting to survive in schools

Students too often lose free-speech rights at the "schoolhouse gate." 04.21.98

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