A gang, essentially, is a group of two or more people whose primary purposes include the commission of illegal and/or violent acts, usually designed to mark territory and preserve a sense of belonging and protection in a geographical area. Gangs and gang violence pervade both schools and communities as a whole. No community, whether urban, suburban, or rural, is immune from the effects of gang violence. Gang activity is often associated with areas that also experience disruptions in families, high poverty, school overcrowding, low student self-esteem, teacher apathy, low cultural and ethnic understanding on the part of educators, and continued race discrimination in schools.
From the schools’ perspective, combating gang presence is a matter of strong policy and practice, usually through conduct and discipline measures like zero tolerance policies, antihazing policies, strict dress codes and uniforms, and random and suspicion-based search and seizure. Perhaps the most popular and noticeable antigang measure that school officials employ is a strict dress code or, in some instances, mandatory uniform policies. This entry looks at typical practices and related court rulings.
Challenges to dress codes and uniforms typically come through the First Amendment Free Speech Clause; a related claim often falls under the freedom of assembly. However, almost invariably, these challenges fail for one or more important reasons.
Some courts hold that student dress does not rise to the level of expressive conduct necessary to warrant First Amendment protection (Olesen v. Board of Education, 1987). In Olesen, a high school student was suspended for violating an antigang policy, which included a provision against wearing clothing, jewelry, or other symbols that signified gang membership. School officials targeted a student who was believed to be wearing an earring that identified membership in a local gang. The student claimed he was merely expressing his “individuality” and argued that the policy violated his free speech rights. The court found for the officials, holding that a message of individuality was not particularized enough to fall within First Amendment protection.
On a second issue in Olesen, the student argued that the antigang policy unfairly targeted boys, in that the policy did not prohibit girls from wearing earrings. The court rejected that claim, too, as the policy targeted gang affiliation clothing, jewelry, and other signs and symbols, regardless of the student’s sex. It is important for educators to review applicable dress and uniform codes for their currency, as gangs change symbols, colors, and other identifying messages often. Flexibility and coverage are a must for antigang policies to succeed.
School Actions and Defenses
Schools defend their dress codes, uniforms, and antigang policies on the disruption standard from Tinker v. Des Moines Independent Community School District (1969). In Tinker, the Supreme Court ruled that school officials may not restrict the silent, passive, political speech of students without evidence that the speech materially or substantially interferes with or disrupts the work of the school or the rights of others or has the reasonable likelihood of doing so. It is clear that the signs and symbols of gang affiliation in a school could substantially disrupt the work of the school, as one of the well-known goals of gangs is to provoke conflict and violence.
School officials also defend their dress codes, uniforms, and antigang policies on the civility standard from Bethel School District No. 403 v. Fraser (1986). In Bethel, the Supreme Court reasoned that students’ rights in schools are not automatically coextensive with adults’ rights in other settings. In other words, the Court was of the opinion that it is appropriate for educators to disassociate their schools from the expressive conduct of students to make the point that lewd, vulgar, and profane speech is inconsistent with the fundamental values of public education. Civility and socially appropriate behavior are part of a school’s curricular and cultural mission, and antigang policies are often well within these important institutional missions.
With respect to Fourth Amendment search and seizure, courts are almost uniformly favorable to the work of school officials and their antiviolence measures. To this end, courts typically agree that both suspicion- based and random, suspicionless searches are lawful in schools. Suspected gang membership may support reasonable suspicion and a justified search. The totality of the circumstances is analyzed when judging the reasonableness of a search, including known or suspected gang affiliation, tips from credible witnesses, and the likelihood that a search will turn up evidence of a violation of a law or school rule (New Jersey v. T. L. O., 1985; United States v. White, 1995).
Random, suspicionless searches, such as those involving drug-sniffing dogs, are also effective in defusing gang activity and are commonly upheld in the courts. School officials regularly work with local law enforcement to conduct these searches, which often take school authority off school premises and into the community, where gang activity is often higher.
Punishment for gang-related activity in schools is often severe, defended with the application of zero tolerance policies and calling for expulsions that last as much as 1 year or even motions for permanent exclusion for the most serious offenders—those also charged and convicted of felonies. Among the applicable infractions are drug and weapon offenses and other acts involving serious bodily harm. While the authority of school officials to impose such penalties remains high, especially in light of the seriousness of the infractions, due process is still in order, with constitutional and statutory requirements for notice of the charges against the student and the requisite opportunity for a hearing. The more serious and/or long-term the penalty is, the more formal the procedures and hearings must be. It is important for educators to consult their state statutes and local ordinances for applicable antigang measures.
Patrick D. Pauken
- Sperry, D. J., Daniel, P. T. K., Huefner, D. S., & Gee, E. G. (1998). Education law and the public schools: A compendium (pp. 525–538). Norwood, MA: Christopher-Gordon.
- Bethel School District No. 430 v. Fraser, 478 U.S. 675 (1986).
- New Jersey v. T. L. O., 469 U.S. 325 (1985).
- Olesen v. Board of Education, 676 F. Supp. 820 (N.D. Ill. 1987).
- Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
- United States v. White, No. 94–2575, 1995 U.S. App. LEXIS 2908 (7th Cir. Feb. 13, 1995) (unpublished order).