Running Head: ARTIFACT #3 1

Artifact #3

Deidra Marie Glaser

College of Southern Nevada

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Abstract:

The case concerning Bill Foster is involves a student’s First Amendment rights that were

possibly violated, due to the student wearing a piece of jewelry to school, even though the school

policy prohibits the wearing of such things, because of recent gang-activity. The cases that could

possibly be used to his defense are ​Tinker v. Des Moines,​ and​ Bethel School District No. 403 v

Fraser. ​Cases that could possibly be used in the defendants case include, ​Kuhr v. Millard Pub.

Sch. Dist. ​and ​Alabama & Coushatta Tribes v. Big Sandy School District. ​Students do not lose

their rights to freedom of expression as they enter the school; however, some forms of expression

can be restricted if the school officials deem the expression as harmful to the learning

environment or other students. In regards to Bill’s case, I do not think he his expression was

dangerous or harmful, and his First Amendment rights were possibly violated.
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Artifact #3

Fashion apparel and style can be seen as a representation of a person's identity. Most

schools require some form of minimal dress code, while others are more strict and require

uniforms. It is within a schools right to implement and enforce such dress code policies in

regards to improving the school culture and learning environment. Due to rising gang related

incidents in the area, one school implemented a policy prohibiting the wearing of gang symbols,

such items included things such as jewelry, emblems, earrings, and athletic caps. Bill Foster,

who is considered an average student at the school, decided to wear an earring to school in the

belief that the earring was attractive to young ladies. He was suspended for his act, due to the

newly enacted policy; however, he filed suit.

It is in Bill’s right to file a suit against his suspension. In ​Goss v. Lopez​, the Supreme

Court recognized a students state-created property right to an education, which can not be

impaired unless the student is afforded notice of the charges, and an opportunity to refute the

matter in front of an impartial decision maker (Cambron, 2014). The fact that Bill is filing suit

means he is able to enforce this right, and will hopefully get his complaint heard. The case

sounds very similar to the “​Tinker v. Des Moines Independent Community School District”​ case

back in 1969. According the law website called, ​Legal Information Institute,​ it describes the case

as the following:

Students were suspended from school for wearing black armbands to protest the

Government's policy in Vietnam. The court upheld: in wearing armbands, the

petitioners were quiet and passive. They were not disruptive, and did not impinge

upon the rights of others. In these circumstances, their conduct was within the
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protection of the Free Speech Clause of the First Amendment and the Due Process

Clause of the Fourteenth…. a prohibition against expression of opinion, without

any evidence that the rule is necessary to avoid substantial interference with

school discipline or the rights of others, is not permissible under the First and

Fourteenth Amendments” (Cornell, 1994).

If the school authorities had reason to believe that the wearing of the earing would substantially

interfere with the work of the school, or impinge upon the rights of other students then the

suspension would be more justifiable and sound. However, there was no evidence of gang related

reasons for wearing the item, and the student claimed he just wanted to wear an earring to be

more fashionable.

The reason for the suspension was due to wearing a piece of jewelry that for the most part

was not used to represent any kind of threatening, vulgar or violent in nature. Also according the

law website called, ​Legal Information Institute​, in “​Bethel School District No. 403 v Fraser,”​ the

courts ruled that:

“The First Amendment did not prevent the School District from disciplining

respondent for giving the offensively lewd and indecent speech at the assembly….

It is a highly appropriate function of public school education to prohibit the use of

vulgar and offensive terms in public discourse…. Petitioner School District acted

entirely within its permissible authority in imposing sanctions upon respondent in

response to his offensively lewd and indecent speech, which had no claim to First

Amendment protection” (Cornell, 1994).

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The wearing of the earring was a violation to the schools new anti gang policy, although, for it to

be something that required serious disciplinary action, the violation should have to include

something that represented gang activity, or offensive symbolism. Mr. Foster was not promoting

or advocating either, or for any cause, or specific purpose. In addition, the item was not causing a

disruption to any other student or the learning environment.

In contrast, the school was in the right for suspending Bill Foster in some ways. “If

school authorities can link particular attire to gang activities or other school violence, restrictions

likely will be upheld,” according the the ​Legal Rights of Teachers and Students​ textbook. There

were two different federal district court cases where courts upheld the suspensions of students,

because of finding reason to believe the acts could be possibly gang-related. The first one being

Kuhr v. Millard Pub. Sch. Dist.​, in Nebraska, where students were suspended for wearing

bracelets and T-shirts with the phrase, “Julius RIP” in honor of their friend who had been shot

for alleged gang-related reasons. The other, being ​Born v. Cabell County Board of Education​, in

West Virginia, around 2010, where the court upheld a student’s suspension for writing a slogan

on his hands about freeing a classmate who was accused of shooting a police officer; stating it

would contribute to gang-related disturbances (Cambron, 2014). If school employees and staff

consider a student’s attire to be controversial, or a possible disruption to the safety of the school

environment, they may request something to be done about it, and proceed with legal action.

Students right to freedom of expression is limited within schools, but not nonexistent.

The student’s apparel did not hold any religious or symbolic significance. In the case of ​Alabama

& Coushatta Tribes v. Big Sandy School District, ​where the plaintiffs, Native American students

and their tribe, contend the dress code that violated their constitutional right to the freedom of
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expression for religion, in conjunction with other First and Fourteenth Amendment rights. The

Big Sandy Independent School District had enforced a dress code restricting the hair length of all

male students; which conflicted with some of the male Native Americans students traditions and

religious beliefs (Justia, 2018). In the end, the courts ruled alongside the plaintiff stating that the

dress code violates the expression of their culture. Therefore, if the dress code had violated the

students rights to the expression of one's culture then the court might rule in favor of the student;

however, student’s the item was merely for entertainment purposes, and was in violation with the

dress code, so the student is in line for disciplinary action.

Based off of the previous rulings, I would say the judge would side with the plaintiff,

stating that his First Amendment rights were violated. In regards to the Kuhr and Millard cases,

there was no evidence here suggesting gang-related reasons for wearing the accessory. Following

based off the rulings in the Tinker and Bethel cases, no distrances or disturbance was caused by

the students jewelry, and no vulgar language was apparent. Although, it is important for schools

to uphold and implement policies in regards to dress code, and to keeping students safe, this case

would pass the Tinker test, because no harm was caused or implied, and the action would

probably be in the students right to freedom of expression.

In conclusion, I feel that the student’s wearing of the earring was harmless. There was no

significant evidence that it had anything to do with gang-related activity, and it also did not seem

to cause a disturbance to the learning environment. It was just a simple fashion statement, or

mild form of expression that a majority of people in the world do every single day. He should not

have been suspended for wearing an earring, maybe he should have been given detention for a

few weeks instead.

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References:

Cambron-McCabe, N. H., McCarthy, M. M., & Eckes, S. (2014). ​Legal Rights of Teachers and

Students​. (Third edition). Upper Saddle River, NJ: Pearson.

Cornell Law School. (1994). Bethel School Dist. No. 403 v. Fraser. Retrieved April 18, 2018,

from https://www.law.cornell.edu/supremecourt/text/478/675

Cornell Law School. (1994). Tinker v. Des Moines Independent Community School Dist.

Retrieved April 18, 2018, from ​https://www.law.cornell.edu/supremecourt/text/393/503

Justia Company. (2018). Alabama & Coushatta Tribes v. BIG SANDY SCHOOL D., 817 F.

Supp. 1319 (E.D. Tex. 1993). Retrieved April 18, 2018, from

https://law.justia.com/cases/federal/district-courts/FSupp/817/1319/1459376/