Running head: Freedom of Expression and Students 1

Freedom of Expression and Students

Erin A. DeSelms

College of Southern Nevada

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Abstract

Freedom of expression is protected by the First Amendment in the United States, but

when is it not protected? In the case of Bill Foster, a student who was suspended for wearing an

earring, freedom of expression may not be protected. The school Bill Foster attends has a policy

against jewelry, athletic caps, and emblems. This policy was put in place due to gang violence in

the community. Based on a few landmark cases that we will review, Bill would not win a case

against the district because they were acting in the best interest of the school and the students.

Keywords:​ Freedom, expression, protected

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Freedom of Expression and Students

In this particular case we see a young man, Bill Foster, who was suspended from school

for wearing an earring which he thought would make him seem cool. Administration however,

had just implemented a new policy that prohibited students from wearing any emblems, jewelry,

or athletic hats due to gang activity that was going on around the school. While Bill saw the

earring as innocent and maybe a fashion statement, the school’s policy was that he could not

wear it on school premises. Bill filed suit against the school/school district after being suspended.

We’re going to examine if his freedom of expression rights were violated and what outcome we

would see for this case.

“The First Amendment, as applied to the states through the Fourteenth Amendment,

restricts​ governmental ​interference with citizens’ free expression rights”. (Legal Rights of

Teachers and Students, 96) Under the First Amendment, citizens of the United States have rights

when it comes to freedom of expression and freedom of speech. “But free speech guarantees

apply only to conduct that constitutes expression”. (Legal Rights of Teachers and Students, 96)

So for example, students have the right to sit during the Pledge of Allegiance because they are

being faced with a demand for an expression and they may not want to make that expression.

They have that right under the First Amendment to sit down, but in cases where there is no

legitimate demand for expression these rights may not be protected. Also, any expression that is
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defamatory, obscene, or inflammatory are not protected either. When looking at a court case that

involves freedom of expression, we must also take into account where that expression was made.

If it was made in a public place, like a park, it could be protected. “Content-based restrictions are

permissible in a nonpublic forum to ensure that expression is compatible with the intended

governmental purpose, provided that regulations are reasonable and do not entail viewpoint

discrimination”. ( Legal Rights of Teachers and Students, 97)

In the landmark case, ​Tinker v. Des Moines Independent School District​, we have three

students who were prohibited from wearing black armbands in protest of the Vietnam War. The

administration of the school held a meeting that banned the armbands from the school, possibly

to meet their own agenda. The court ruled that the three students would be allowed to show

freedom of expression by wearing these armbands because it did not cause a disturbance. The

Supreme Court ruled that “undifferentiated fear or apprehension of disturbance is not enough to

overcome the right to freedom of expression”. (Legal Rights of Teachers and Students, 98)

Based upon the ruling of ​Tinker v. Des Moines Independent School District​, our plaintiff, Bill

Foster, would be able to wear his earring to school because it is not causing any disorder or

disturbance.

In the second case I’d like to take a look at,​ Board of Education of the Westside

Community Schools v. Mergens​, a student named Bridget was asking permission to start an

after-school Christian club. The school in question already has thirty plus clubs including a scuba

diving club and chess club. Her request was denied because the school stated it would be illegal

in a public school to allow a religious club. The court ruled in favor of Bridget stating that since

the school had allowed other “student interest” clubs, that it must allow the Christian club under
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the First Amendment and freedom of expression rights. Based upon the findings of this case our

plaintiff, Bill, would also win his case regarding freedom of expression. Although this case

involves a student club, and not an earring, the Court still upheld the students right to free

expression.

In a third case, ​B.H. v. Easton Area Sch. District​, school administration argued that a

student who was wearing an armband that said “I love boobies (save a breast)” was vulgar and

inappropriate for school. The Court upheld that the student had a right to free expression and did

not consider the word “boobies” to be vulgar. The student was allowed to continue wearing his

armband in support of breast cancer awareness. When looking at this case, our plaintiff Bill,

would be able to wear his earring in a display of expression because he is not causing a

disturbance. As long as the earring was not vulgar, he would be able to continue wearing it.

In​ Bethel School District No. 403 v. Fraser ​the Supreme Court ruled that administration

has the right to censor lewd, vulgar, or indecent student expression. The school district took

disciplinary action against a student who used a sexual innuendo during a student council speech.

The administration at the school deemed this inappropriate for both teachers and students. The

Court stated that “speech protected by the First Amendment for adults is not necessarily

protected for children”. (Legal Rights of Teachers and Students, 99) The Court, in this case,

upheld the decision of the district. Based upon the decision of ​Bethel School District No. 403 v.

Fraser,​ we could assume that Bill Foster would not be allowed to wear his earring because it was

deemed inappropriate by administration for possibly inciting gang violence.

In another landmark case,​ Hazelwood School District v. Kuhlmeier,​ a principal deleted a

two page article in the school newspaper that was about divorce and teen pregnancy. The
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students stated that the school newspaper was a public forum for free expression. The court

rejected this notion because “only with school authorities’ clear​ intent​ do school activities

become a public forum”. (Legal Rights of Teachers and Students, 98) Because of this the Court

ruled that the principal had the right to delete that two page article. The administration of the

school did not approve it, therefore it was not protected under the First Amendment. Because of

this case our plaintiff, Bill, would not be allowed to wear his earring to school. The

administration at his school determined that jewelry could signify gang relations and it could

possibly disturb other students or incite violence. Therefore, the Court would uphold the school’s

decision.

In the case of Bill Foster v. The School District we have a student who was suspended for

wearing an earring that administration deemed inappropriate. They said jewelry, emblems, and

hats were inappropriate because of recent gang activity in the school’s area. Based upon the

findings in the cases we have reviewed, in my opinion the Court would uphold the district’s

decision for suspension. The administration of this school decided that because of gang activity

in the community that wearing these things could incite gang violence and therefore would be

inappropriate in a school setting.

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References

Nelda H. Cambron, Martha, M McCarthy, Suzanne E. Eckes (2014). Legal Rights of Teachers

and Students Vol 3, 96-99.

Jacobs, Tom (2007). 10 Supreme Court Cases Every Teen Should Know, Retrieved from

http://www.nytimes.com/learning/teachers/featured_articles/20080915monday.html