(dissenting).
I respectfully disagree with the conclusion of the majority that the statutory term “gross disobedience or misconduct” in Chapter 122, Section 10-22.6, Illinois Revised Statutes, supplies sufficiently *898clear and narrow standards for the expulsion of a high school student.
The discipline of students in state intermediate schools, no less than those in state colleges or universities, is subject to the strictures of the Due Process Clause of the Fourteenth Amendment. Cf. Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731. Due process includes the substantive elements of fairness as well as procedural regularity. It is a flexible and adaptable concept, subject to variation in accordance with the individual circumstances involved. Thus prohibitions against vagueness and overbreadth, when applied to test rules governing student conduct, need not demand the same rigorous level of clarity required of criminal statutes. Soglin v. Kauffman, 418 F.2d 163, 168 (7th Cir. 1969). Likewise, greater flexibility may be permissible in regulations governing high school students than college codes of conduct because of the different characteristics of the educational institutions, the differences in the range of activities subject to discipline, and the age of the students. Cf. Scoville v. Board of Education, 425 F.2d 10 (7th Cir. 1970) (en banc). On the other hand, this flexibility does not render constitutional any standard of discipline, however vague and overbroad it may be. In my opinion, the instant standards of "gross disobedience or misconduct," without more, fail to satisfy even the most rudimentary requirements of clarity and definition imposed by due process.
In Giaccio v. Pennsylvania, 382 U.S. 399, 404, 86 S.Ct. 518, 15 L.Ed.2d 447, the Supreme Court held that terms such as "misconduct" or "reprehensible conduct" are unconstitutionally vague when used as standards imposing forfeiture, punishment or judgments for costs. At the university level, the use of "misconduct" as a disciplinary standard applicable to all student conduct is also unconstitutional. Soglin v. Kauffman, 418 F.2d 163 (7th Cir. 1969). Nothing in this case distinguishes the standards of "gross disobedience or misconduct" from those decisions, for nothing has been added here which limits or defines the meaning of those terms. They are not clarified or narrowed by an application limited to any specific context. They cast their shadow equally over classroom conduct and student activities on and off school grounds, during or after hours. They provide no meaningful guidance to students or administrative officials as to the nature of prohibited activities. The coverage of these terms is so broad and ill-defined that effective prevention of unconstitutional abuses would be impossible. There is nothing in the nature of the intermediate school, per se, or in the age of the students subject to this standard of discipline, which justifies such extremely vague and overly broad terminology. Moreover, reasonably clear and precise standards might easily be fashioned. In light of the gravity of the penalty of expulsion, something more than "gross disobedience or misconduct" should be required.
Plaintiff's expulsion might have been sustainable had the School Board given content to "gross disobedience or misconduct" through reasonably narrow rules or regulations. Chapter 122, Section 10-20.5, Illinois Revised Statutes, vested the Board with the power to "adopt and enforce" such rules. Construed as a standard for the School Board's exercise of that rule-making authority, "gross disobedience or misconduct" might well be constitutional. See Panama Refining Co. v. Ryan, 293 U.S. 388, 420-430, 55 S.Ct. 241, 79 L.Ed. 446; cf. Kent v. Dulles, 357 U.S. 116, 127-129, 78 S.Ct. 1113, 2 L.Ed.2d 1204. Although the notice sent to the parents of plaintiff Marquitta Whitfield referred to "regulations," the only pertinent provision of the "Policies and Regulations of the Board of Education of School District No. 1, Alexander County, Illinois," is Section 151 which merely restates verbatim the *899gross disobedience or misconduct standard set forth in Chapter 122, Section 10-22.6. Since there is no applicable regulation which contains a constitutionally valid rule of conduct, plaintiff’s expulsion was illegal, and she is entitled to reinstatement. Because of this conclusion, I express no opinion on the procedural issues raised herein.2
. Section 15 authorizes the School Board:
“To suspend or expel pupils guilty of gross disobedience or misconduct and by regulation to authorize the superin*899tendent of schools of any district or the principal of any school to suspend pupils guilty of gross disobedience or misconduct for not to exceed 7 days or until the next regular meeting of the board, whichever first occurs, and no action shall lie against them for such expulsion or suspension. Expulsion shall take place only after the parents have been requested to appear at a meeting of the board to discuss their child’s behavior. Such request shall be made by registered or certified mail and shall state the time, place and purpose of the meeting. The board at such meeting shall state the reasons for dismissal and the date on which the expulsion is to become effective.”
. This panel was properly convened pursuant to 28 U.S.C. § 2281 to consider the merits of plaintiffs’ requested injunction against continued application of Chapter 122, Section 10-22.6, Illinois Revised Statutes. Examination of the statutory scheme and the decisions of the Illinois courts provides no clear indication whether this statute is susceptible to a constitutional construction as an enabling standard regulating the Board’s exercise of its delegated power to promulgate rules under Chapter 122, Section 10-20.5, Illinois Revised Statutes. Defendants have not sought to sustain the constitutionality of the statute on that ground, and the majority’s decision presupposes the contrary. Therefore, a detailed consideration of state law or the propriety of a decision by this panel based upon such a construction would not be fruitful.