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

Wednesday, November 18, 2009

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

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

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.”

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