EDU 210 Court Arguments

Maria Rivera
College of Southern Nevada

Introduction
The scenario given describes a large American high school in the northeastern part of the
country that has implemented a policy forbidding students from wearing gang symbols such as
jewelry, earrings, emblems, and athletic caps. This policy was developed in response to
prevalent gang activities in the school. Bill Foster was suspended for wearing an earring to
school and consequently filed suit believing that his freedom of expression rights had been
violated. Mr. Foster was not involved in any gang activity and only wore the earring as he
believed young ladies would find it attractive as well as a form of self-expression.
Violation of Freedom of Expression Rights
Tinker v. Des Moines Independent Community School District (1969) clearly supports the
belief that Mr. Foster will prevail in this First Amendment case. In this first school dress code
case, the student was sent home and suspended because he wore a black armband to school
publicizing his objection to the Vietnam War (Scibetta, 2013). This was the landmark 1969
Supreme Court case that ruled that students do not "shed their constitutional rights to freedom of
speech or expression at the schoolhouse gate"(James, 2007, p.1). The school would have a heavy
burden to bear, as shown in Tinker when the Court wrote that there must be evidence that the
prohibition was necessary to avoid material and substantial interference with schoolwork of
discipline(Scibetta, 2013, p.1). Additionally, there have been no facts shown that could have
reasonably caused administrators to believe that an earring could cause disruption in the school,
and in fact, no disruptions previously caused by earrings being worn by young men have been
shown. (Scibetta, 2013).
Griggs v. Fort Wayne, (2005) further supports Mr. Fosters position. In this case, as student wore
a United States Marine Corps shirt with a slogan and an image about an M-16 rifle (Osborne,

2013). Due to previous school weapons violence issues, and because there was a dress code
prohibiting it, Griggs was told that he could not wear the shirt to school (Osborne, 2013).
However, he wore it in protest the next school day and was suspended (Osborne, 2013). Griggs
alleged that his First Amendment rights were violated by enforcement of an overly broad dress
code (Osborne, 2013). The court took note of the districts problematic gun history, however, did
not agree that inappropriate clothing could cause violent incidents (Osborne, 2013). The court
found that Griggs First Amendment right to free speech was violated because the policy
served no legitimate pedagogical purpose (Osborne, 2013, p.3).
No Violation of Freedom of Expression Rights
In Harper V. Poway, (2006), the court reached a conclusion that could cause Fosters case
to be decided in the schools favor. In this case, Poway High school allowed a student group to
hold a Day of Silence at the school which was intended to educate students about tolerance of
those with differing sexual orientation (Osborne, 2013). Students were permitted to wear shirts
that conveyed a pro-gay message for this event (Osborne, 2013). Student Harper disagreed with
the message of the event and wore a shirt with religious messages condemning homosexuality
(Osborne, 2013). A teacher noticed off task discussions regarding the shirt, and Harper was
found to be in violation of the school dress code because the message on his shirt was
inflammatory (Osborne, 2013). Harper refused to remove the shirt so he was suspended
(Osborne, 2013). However, the Court found that those who administer our public educational
institutions need not tolerate verbal assaults that may destroy the self-esteem of our most
vulnerable teenagers and interfere with their educational development. (Osborne, 2013, p.4).
The Court held that Harpers First Amendment rights were not violated by the suspension
(Osborne, 2013).

A mandatory school uniform case may have some bearing on the Foster case as well. In
Littlefield v. Forney Independent School District (2001), the Court found that a mandatory school
uniform policy did not violate students First Amendment free expression rights nor their free
exercise of religion rights (Firstamendmentschools, 2013). In this case, the schools policy did
contain an opt-out provision for those with sincere philosophical or religious objections to the
policy. The court considered this to be a neutral policy that did not target anyone
(Firstamendmentschools, 2013). The court in Fosters case may hold the same view, and find for
the school.
1. Were Bills freedom of expression rights violated in this case?
No, I do not feel that Bills freedom of expression rights was violated. The scenario clearly
states that the dress code policy was developed based on gang activities that were prevalent in
the school. The dress code was most likely also developed to protect the students from material
and substantial disruptions.
2. Was his suspension justified?
Based on the scenario, it is hard to say if it was justified. Did Bill defy the school officials? Was
he disrespectful in the process? Was he given the opportunity to remove the earring and refused?
If I had to answer this based solely on the scenario, I would say no there should not be an
automatic suspension for one violation of the dress code.
3. Should Bill have been permitted to wear the earring since he was not involved in
gang activity?
Whether Bill was a gang member or not is irrelevant. He could be a wannabe or it could be a
coincidence, but if the earring was considered a recognized gang symbol and it was prohibited by
the school dress code, then Bill should not be permitted to wear the earring to school.

4. As principal, what factors would you weigh in determining whether Bill would be
permitted to wear an earring?
As a principal, I would consider these factors:
a. What specifically does the dress code state about gang symbols?
b. Is the jewelry worn by Bill a recognized gang symbol or is it just a piece of jewelry?
c. Is Bill a member of a gang? Is he a wannabe? Is he suspected to be a gang
member?

d. Did the wearing of the jewelry cause a substantial disruption to the school?

5. Would the court support Bill?

I feel that if there was no substantial evidence of gang activity in the school that is causing
problems (material disruption), then the court may support Bills constitutional right to free
speech based on Tinker.
6. Would the court support school officials?
In this scenario, it states that there was gang activities prevalent in the school. Based on this, I
believe that the court would side with the school officials because the policy was developed as a
result of gang activity and possibly material disruption.
7. What are the administrative implications suggested by this case?
I think that I would want to look carefully at the dress code. It seems to be a blanket policy. I
think a policy that prohibits the wearing of known or suspected gang symbols would make more
sense than a blanket policy. It seems that the broader the policy, the greater the risk of trampling
the rights of students.

Reference
Griggs v. Fort Wayne School Board, (2005).
United States District Court, N.D. Indiana, Fort Wayne Division
James, S. (2007). Now middle-aged, student protesters echo triumphs and casualties of the 1960s.
Retrieved from

http://abcnews.go.com/TheLaw/story?

id=3318706&page=1#.UXyuKKJOM0k
Littlefield v. Forney Independent School District, 268 F.3d 275 (5th Cir. 2001)
Oyez, (2013). Tinker v. Des Moines Ind. Comm. School Dist. The Oyez Project. Retrieved from
http://www.oyez.org/cases/1960-1969/1968/1968_21
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).