Professional Documents
Culture Documents
Marilyn Gonzalez
Dr. Isbell
EDU 210
In an attempt to seem more attractive to his fellow female students, high school student
Bill Foster wore an earring to school. His school promptly suspended him, citing the high
school’s dress code, which stipulated that clothing and accessories such as jewelry, emblems,
earrings, and hats that are associated with gang activity was strictly prohibited. This dress code
was implemented after it became apparent that gang-related activity was prevalent in the school.
Foster himself is not associated with any gangs and states that choosing to wear an earring is a
form of self-expression. Feeling that his suspension was a violation of his rights, Foster filed suit.
Tinker v. Des Moines Independent Community School District (1969) is the first case
presented in favor of Foster’s freedom of expression. This case, decided by the United States
Supreme Court, concerned students wearing a black armband to school in protest of the Vietnam
War. Administrators who were aware of this protest implemented a school policy effectively
banning these armbands, which resulted in Tinker and other students receiving a suspension. The
Supreme Court found that the wearing the armbands is a form of expression that is protected by
the First Amendment. Additionally, the court found that by suspending the students, the school
also violated students’ right to due process under the Fourteenth Amendment. Pursuant to the
findings of this case, Foster has a solid base from which to argue that his First Amendment rights
were violated, as students do not “shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate” (Tinker v. Des Moines, 1969). Furthermore, it can be argued
that simply wearing an earring does not “impinge upon the rights of others” (Tinker v. Des
Moines, 1969). This is in-line with the Tinker Standard set forth by this case, which states that
unless there is “evidence that it is necessary to avoid material and substantial interference with
ARTIFACT 4 STUDENT’S RIGHTS AND RESPONSIBILITIES 3
schoolwork or discipline,” prohibition of expression is “not constitutionally permissible” (Tinker
v. Des Moines, 1969). Under the scope of this landmark Supreme Court case, Foster also has
grounds to argue that the suspension he received as a result of wearing an earring is a violation of
The second case presented in favor of Foster’s argument that his right of expression was
violated is Chalifoux v. New Caney Independent School District (1997). This case, decided by
Texas’ District Court, parallels Foster’s case in that high students David Chalifoux and Jerry
Robertson were suspended on the grounds of wearing rosaries, which violated their school’s
dress code as being associated with gang activity. This case found that by wearing rosaries as a
form of symbolic religious expression, Chalifoux and Robertson were engaging in protected
speech under the First Amendment. While this case concerns religious expression, the findings
of this case can apply to Foster because the ruling in this case also states that during the time that
Chalifoux and Robertson were wearing their rosaries, they were never approached by gang
members nor were they ever misidentified as gang members. Similarly, although Foster was
wearing an earring, he was neither misidentified nor approached by gang members. Therefore,
this is in-line with the court’s statement that the school “must show that […] speech caused a
substantial interference with school activities” (Chalifoux v. New Caney, 1997). Since there is no
interference other than Foster’s suspension, Foster has grounds to argue that simply wearing an
earring did not cause enough disturbance to warrant such an infringement upon his freedom of
expression.
Bethel School District No. 403 v. Fraser (1986) is the first case presented in favor of
administrators’ argument that they have a right to implement and enforce this dress code. In this
ARTIFACT 4 STUDENT’S RIGHTS AND RESPONSIBILITIES 4
case, decided by the United States Supreme Court, a public high school student delivered a
speech during a student assembly that was riddled with lewd comments and sexual innuendo.
This caused a stir in the assembly, with “students hoot[ing] and mimick[ing] the sexual acts” the
student was referring to. The school found that this speech was in violation of the school’s
“disruptive-conduct rule” and he was given a three-day suspension as well as being removed
from the list of proposed graduation speakers. The Supreme Court held that this student was not
engaging in protected speech, which meant that “the First Amendment did not prevent the
School District from disciplining” (Bethel v. Fraser, 1986). Additionally, the court maintained
that students are not granted protections at the “same latitude” as adults under the First
Amendment, and that deciding which modes of expression “are inappropriate and subject to
sanctions” is a responsibility that rests with the school board (Bethel v. Fraser, 1986). Under the
scope of this case, administrators have sufficient grounds to argue that they are well within their
right to implement and enforce this dress code. Dress is not necessarily a form of expression as
many states, including two Northeastern states (where Foster’s high school is located), do not
recognize dress a form of expression, meaning Foster’s choice to wear an earring is not
necessarily protected under the First Amendment (Underwood, 2006, p.124). Furthermore,
because of the prevalent gang activity in this high school, the assumption that wearing an earring
would cause a disruption is a logical conclusion. Therefore, administrators can argue that due to
this potential for disruption, granting a suspension to Foster for violating the dress code is within
their authority.
The second case presented in favor of administration's right to enforce this dress code is
Boroff v. Van Wert City Board of Education (2000). This case, decided by the United States
ARTIFACT 4 STUDENT’S RIGHTS AND RESPONSIBILITIES 5
Sixth Circuit Court of Appeals, regards high school student Nicholas Boroff’s choice to wear
Marilyn Manson t-shirts to school. These shirts, which featured language and imagery that was
offensive, but not obscene, was in violation of the school’s dress code, which specifically
stipulated that “clothing with offensive illustrations” were not acceptable (Boroff v. Van Wert,
2000). Boroff was suspended after repeated warnings. The court held with the ruling established
in Bethel v. Fraser regarding the school’s right to “prohibit the use of vulgar and offensive terms
in public disclosure” (Boroff v. Van Wert, 2000). Moreover, because Boroff’s clothing choice
was neither a form of political expression, it did not necessitate the need to apply the Tinker
Standard (Boroff v. Van Wert, 2000). This case, in conjunction with the previously outlined
case, serves as a base for administration to argue that Foster’s choice to wear an earring is not a
form of protected speech or expression. It also reaffirms administration’s right to deem what
forms of expression are acceptable. This findings in this case also establish that there is a pattern
for courts to err on the side of ruling in favor of administration in these gray areas, strengthening
It is my belief that, if this case were brought to court, the court would hold in favor of
Foster. While I would agree that the school administration does have an established right to
determine which non-protected forms of expression are permissible under both Bethel v. Fraser
and Boroff v. Van Wert, Foster’s earring was neither vulgar nor disruptive to the school
environment. During the time that Foster was in school, he was neither misidentified nor
approached by gang members, which fits the disruption standard outlined in Chalifoux v. New
Caney. Moreover, Foster himself did not engage in any offense or disruptive conduct.
Additionally, there is also the consideration that, if Foster’s school is not located in Pennsylvania
ARTIFACT 4 STUDENT’S RIGHTS AND RESPONSIBILITIES 6
or Ohio (both states in the Northeast), dress may be automatically be considered a form of
expression. If that is the case, then dress in this case may not fall under the school’s scope of
responsibility regarding determining freedom of expression, effectively nulling the findings of
Bethel v. Fraser and Boroff v. Van Wert as applied to this case.
ARTIFACT 4 STUDENT’S RIGHTS AND RESPONSIBILITIES 7
References
Bethel School District No. 403 v. Fraser, No. 84-1667 (1986). (n.d.). Retrieved November 6,
Boroff v. Van Wert City Board of Education, No. 98-3869 (2000). (n.d.) Retrieved November 6,
Chalifoux v. New Caney Independent School District, 976 F. Supp. 659 (1997). (n.d.) Retrieved
Lastname, W. (2009). If there is no DOI use the URL of the main website referenced. Article