Running head: ARTIFACT #3 STUDENT EXPRESSION

Artifact #3 Student Expression

Sarmiento Daisy

College of Southern Nevada

ARTIFACT #3 STUDENT EXPRESSION 2

Abstract

This paper will discuss the case of a high school student named Bill Foster. After being

suspended for violating a dress code, he filed suit. He argues that it was a violation of his

freedom of expression, while the school believes the earing he wore could in fact, be gang

related. Two pro and two con cases are analyzed to determine what would be the most

appropriate ruling for Foster's case. Each one is explained, and the final ruling by the court is

provided. The First Amendment, Fourteenth Amendment, and due process are briefly addressed

to provide a better understanding of the ruling for the four cases. The conclusion reached was

that Bill Foster's suspension would be suitable since he violated a clear and specific policy set by

the district.
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The United States is often referred to as "the land of the free." Americans can express

themselves quite freely without fearing severe repercussions. This liberty includes clothing and

attire. Under some circumstances, for example, work or school, the rules might be different. In

the northeastern part of the U.S., a high school student named Bill Foster was suspended for

wearing an earring to school. The school argued that he was violating a gang-related policy on

campus. Since gang violence was so high, the policy was implemented to prevent students from

wearing any emblems, athletic caps, or jewelry that might be related. There was no association

between Foster or any gang activity. He simply wanted to attract hIs fellow female peers. With

both sides providing convincing justifications, the case is worthy of analysis.

To make a fair and reasonable judgement, it is important to know what the 1 st

Amendment, 4th Amendment, and due process signify. The 1 st Amendment is highly recognized.

It is the foundation for American freedom. This gives each individual freedom of speech,

religion, and assembly. Since it is one of many forms of expression, included in all of that is the

clothing that one wears. Then there is the 14th Amendment which also comes into play. It offers

protection to the rights of individuals in public education. Lastly, due process guarantees a free

trial to anyone that looks for it. Thankfully, this allows anyone and everyone to defend themself

through a fair trial.

The first pro court case to analyze is Tinker v. Des Moines Independent School District.

This historic case has served as the prime example of student expression rights. In 1969, students

were protesting the controversial Vietnam War by wearing black armbands on campus. Even

after the armbands were banned on school grounds, students continued using them and were

punished. The case was ultimately taken to court. "Concluding that the students were punished

for expression that was not accompanied by any disorder or disturbance, the Supreme Court
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ruled that undifferentiated fear of apprehension of disturbance is not enough to overcome the

right to freedom of expression"(Cambron-McCabe pg. 235). It was also clarified that even if all

educators have the right to maintain a form of discipline at school, they cannot ignore any

student's constitutional rights in the process.

The second example of a pro court case is B.H. & K.M. et al v. Easton Area School

District. Back in 2010, the “I ♥ Boobies” breast cancer awareness bracelets were at peak

popularity. Despite it being Breast Cancer Awareness day, the two middle school girls were

given in-school suspension and were not permitted to attend the Winter Ball for wearing them on

school grounds (Bomboy). "In February 2011, the U.S. District Court for the Eastern District of

Pennsylvania agreed with the students that the bracelets are not lewd or vulgar and are protected

speech"(SPLC). Also, even though the school considered the bracelets disruptive, the only ones

that seemed to have a problem with them was the administration themselves. The court

ultimately ruled in favor of the plaintiff.

The first court case that does not support Foster's case is Bethel School District No. 403 v.

Fraser. In 1986, a male student was disciplined for using sexual metaphors in his nomination

speech during a student assembly for government. "Concluding that the sexual innuendos were

offensive to both teachers and students, the court majority held that the school's legitimate

interest in protecting the captive student audience from exposure to lewd and vulgar speech

justified the disciplinary action"(Cambron-McCabe pg. 235). The court made it very clear that

the 1st Amendment rights for adults is not one hundred percent identical for students. In a public-

school context, for example, the sensibilities of all the other pupils must be taken into

consideration. Schools have the duty to instill civility and therefore, have the right to determine

what speech is appropriate during class or assemblies.

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The last court case to analyze is Chalifoux v. New Caney Independent School District. In

1997, David Chalifoux and Jerry Robertson were two students enrolled at New Cannery High

School from Texas. The two students wore rosaries to school but were forced to take them off

after they were considered to be "gang-related." They felt that their 1 st Amendment right to

freedom of expression had been violated by the school. It was later determined that the rosaries

were in fact, only being used for religious purposes. Also, "the evidence at trial indicated that the

New Caney High School principal's office does not maintain a list of gang-related apparel. The

only list of prohibited apparel published by NCISD, which is found *664 in the Student

Handbook, does not include rosaries" (Justia US Law). Although this case is the most similar to

Bill Foster's and ultimately ruled in favor of the students, the fact that rosaries were not

specifically mentioned as one of the prohibited items of clothing is very distinct from the Foster

case which makes it a con.

After analyzing the four court cases, it is safe to conclude that Bill Foster's freedom of

expression was not violated. Like it was determined in the Bethel School District No. 403 v.

Fraser case, schools do have the right to regulate certain things. Freedom of expression is

different for adults and students that are in public schools. Also, in Chalifoux v. New Caney

Independent School District, rosaries were not specifically forbidden on school grounds. In

Foster's case, earrings were specifically listed as one of the items that were not allowed to be

worn along with other jewelry. Disobeying a school dress code or policy repeatedly can get an

individual disciplined. Also, Foster's motives for wearing the earrings were not religious or

political and therefore, not necessarily protected. The pro cases ruled in favor of the students

because the restrictions put on them were not clearly outlined in policies or were somewhat

vague. Even if Foster's intentions were harmless and it is believable, he just wanted to impress
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some girls, through a fair trial, the court would not support him due to the fact that he disobeyed

a specific existing school policy.

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References

Bomboy, S. (March 10). Update: How the “Boobies” case almost made it to the Supreme Court -

National Constitution Center. Retrieved from https://constitutioncenter.org/blog/supreme-

court-could-reject-or-accept-boobies-case-on-monday/

Cambron-McCabe, N. H., McCarthy, M. M., & Eckes, S. (2014). Student Expression,

Association, and Appearance. In Legal rights of teachers and students (3rd ed., p. 98).

Upper Saddle River, NJ: Pearson.

JUSTIA US Law. (n.d.). Chalifoux v. New Caney Independent School Dist., 976 F. Supp. 659

(S.D. Tex. 1997) :: Justia. Retrieved from https://law.justia.com/cases/federal/district-

courts/FSupp/976/659/1582548/

SPLC. (n.d.). B.H. & K.M. et al v. Easton Area School District - The Student Press Law Center.

Retrieved from http://www.splc.org/article/2014/09/b-h-k-m-et-al-v-easton-area-school-

district