Running head: GANGS OR GIRLS?

Earrings: are they for the Gangs or the Girls?

Chapter 7 & 9 Assignment Submission (Portfolio #4)

Tina Johnsen

EDU210: Nevada School Law

Dr. Dale Warby

October 3, 2016
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In this latest case that is to be discussed, the students right to

freedom of expression is in question; whether the freedom is protected under

the First Amendment or that the student violated a school dress code policy

will be decided. Bill Foster, the student at the center of the case, wore an

earring to school and was suspended. The school had recently initiated a

policy against wearing gang symbols. These items were listed as jewelry,

emblems, earrings, and athletic caps. Bill was not involved in gang activity

and states that he wore the earring because the girls found it attractive. Was

the school justified in a suspension?

Right off the bat, one must question whether due process was

followed. In the case of Goss vs. Lopez, 419 U.S. 565 (1975) it was determined

that the students due process rights had been violated. The court held that

the state was constrained to recognize students entitlements to education

as property interests protected by the Due Process Clause that could not be

taken away without minimum procedures required by the Clause. It was

never stated if Bill was immediately suspended without proper notice or

hearing, so depending on this detail, the court could side with Bill.

Even if Bill had been given proper due process, the court still needs to

determine if his First Amendment rights were violated. In regards to wearing

an earring as a freedom of expression, if we look at the case of Stephenson vs.

Davenport Community School District, 110 F.3d. 1303 (1997), it reflected similar

circumstances, a vague dress code policy. The court ruled the schools

policy was too vague because it did not give students enough information
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about exactly what expression was prohibited. Therefore Bill should not

have been suspended.

In defense of the school regarding the dress code, Oleson vs. Board of

Education of School District No. 228, 676 F.Supp. 820 (1987) can be used. The

court upheld the districts policy concluding that the boards concern for the

safety and well-being of its students and the curtailment of gang activities

was rational and did not violate the First Amendment. In the case of Bill

Foster, the schools policy was in place for the very reason of increased gang

activity, so they would be justified in the suspension.

Another view that can be examined is by using the Tinker Standard.

Set by the case, Tinker vs. Des Moines Independent School District, 393 US

503 (1969), schools can argue that gang symbols can lead to interference of

the educational process as well as the rights of other students (Mitchell

Wilson, 1998). Again, with the earring being stated as a banned piece of

clothing or accessory, the suspension would not be viewed as a violation of

the First Amendment by the court.

Review of this case found that other courts have favored both sides. In

this case however, the court would support the school. Although the scenario

did not state whether due process was followed, it would still support that

the dress code policy was put in place specifically to curb gang activity that

had recently become prevalent in the school. Therefore, using the Tinker

Standard, the court could uphold the schools suspension of Bill Foster based
GANGS OR GIRLS? 4

on possible interference of the education process as cited in the Oleson vs.

Board of Education case in 1987.

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References

Goss vs. Lopez, 419 U.S. 565 (1975). Oyez. Retrieved September 30, 2016, from

https://www.oyez.org/cases/1974/73-898

Mitchell Wilson, A. (1998). Public Dress Codes: The Constitutional Debate. Brigham Young

University Education and Law Journal. Retrieved September 30, 2016, from

http://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=1086&context=elj

Oleson vs. Board of Education of School District No. 228, 676 F.Supp. 820 (1987). Justia US

Law. Retrieved September 30, 2016, from http://law.justia.com/cases/federal/district-

courts/FSupp/676/820/1626122

Stephenson vs. Davenport Community School District, 110 F.3d. 1303 (1997).

Landmark Cases. Retrieved October 1, 2016, from

http://landmarkcases.org/en/Page/241/Gangs_Tattoos_and_Symbolic_Sp

eech

Tinker vs. Des Moines Independent School District, 393 US 503 (1969). FindLaw. Retrieved

October 1, 2016, from http://caselaw.findlaw.com/us-supreme-court/393/503

Underwood, J. & Webb, L.D. (2006). School Law for Teachers. Upper Saddle River, NJ: Pearson

Education Inc.