Portfolio Artifact #4

Portfolio Artifact #4

Ellise Peterson

College of Southern Nevada

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When a situation takes place where one’s rights are brought into question it is important

to review all aspects of the scenario. While we have been afforded rights as a people, it is still

our responsibility to ensure that these rights are enforced in the proper way. During the example

in question, a high school initiated a policy that prohibited students from wearing “gang symbols

such as jewelry, emblems, earrings, and athletic caps.” A good student named, Bill Foster,

decided to wear an earring to school to express himself. Earrings are considered a “gang symbol”

and Bill was suspended for wearing one.When it comes to court cases, there is supporting

evidence for both a pro and con position on the matter.

One court case that supports a “pro” position is Brandenburg v. Ohio (1969). During this

case, Brandenburg, who at the time was the leader of the Ku Klux Klan made a speech and

because of that speech was convicted. They stated, “with any society, group, or assemblage of

persons formed to teach or advocate in the doctrines of criminal sabotage or violence”

(“Brandenburg v. Ohio,” n.d.). The court’s opinion held that the Ohio law violated

Brandenburg’s right to free speech. While this case couldn’t be more different from Bill Foster’s

case, I choose it because what Brandenburg did was worse than Bill wearing an earring. Yet the

court ruled in his favor because he had the right to free speech. Bill Foster has the rights of the

First Amendment on his side and deserves the right to freely express himself. This is a student

who wore an earring because he thought it was attractive to women. He was not involved in any

gang activity. But a man who was the leader of a hateful group can assemble a group to advocate

crime and the court finds that he’s entitled to that because of being able to freely express himself.

A similar logic is applied to the example scenario in that one may argue that Foster, the student

in question, was freely expressing himself and his free expression rights were violated when he

was suspended.
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Another court case that could support a “pro” position in this matter would be B.H. v.

Easton Area School District (2010). In this case example, two middle-school students wore

bracelets with the slogan “I ♥ boobies! (KEEP A BREAST)” to support a breast cancer

awareness campaign. The Easton Area School District banned students from wearing the

bracelets. They banned them on the cause of vulgar, lewd, profane, and offensive speech. The

District Court “held that the ban violated the students’ rights to free speech and issues a

preliminary injunction against the ban” (“B.H. v. Easton Area School District,” n.d.). “The court

ruled 9-5 that the school’s ban on the bracelets violated the student’s right to free speech because

the bracelets were not plainly offensive or disruptive” (“B.H. v. Easton Area School District,”

n.d.). Just like in this case, Foster can argue that him wearing an earring is not “plainly offensive

or disruptive.” His earring was just that, an earring, a piece of jewelry. It didn’t have a slogan, let

alone anything offensive on it or about it. The suspension violated his rights of freedom that is

protected by the First Amendment. This case shows an incidence that gives a strong “pro” case

that supports the scenario.

Now that we have discussed two possible “pro” cases in this matter, a case that supports a

“con” position would be Tinker v. Des Moines (1969). In this case, a group of students decided to

publicly show their support for a truce in the Vietnam war. During a meeting, the students held,

they decided to wear black armbands during the holiday season. The principal at Des Moines

learned of the plan prior to it happening and decided to create a policy that if a student wore an

armband they would be asked to remove it. If the student/students decided to refuse to remove

the armband, they would be suspended. Mary Tinker and Christopher Eckhardt wore their

armbands to school and that resulted in them being sent home. The following day John Tinker

did the same and got sent home. The students weren’t allowed to return to school until after the
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planned protest was supposed to be over. The parents of these students decided to sue the school

district for violating the students’ rights of expressing themselves. The district ended up

dismissing this case in that “the school district’s actions were reasonable to uphold school

discipline” (Tinker v. Des Moines,” n.d.). In the case of Bill Foster, the school could argue that

he was suspended on the account of upholding school discipline just like they did in the case of

Mary Tinker. Even though Bill was expressing himself and not involved in gang activity the

school stated that wearing earrings is not allowed and he wore one anyway. This case contains

supportive “con” evidence in that, “The Supreme Court held that the students did not lose their

First Amendment rights to freedom of speech when they stepped onto school property. The First

Amendment right does not provide the right to express any opinion at any time” (Tinker v. Des

Moines,” n.d.). This could work against Bill, in that the school could argue it did not violate his

First Amendment rights because the school was within their rights.

The second court case that contains supportive “con” evidence on the suspension of

Foster would be Jacobs v. Clark County School District (2005). This case involves Kim Jacobs

who is an eleventh-grade high school student that continuously violated her high school’s dress

code policy. Kim was suspended from school for violating the policy. Kim argues that she

missed out on classroom experiences and her reputation suffered. Jacobs lost the case because

“the court conducted that the District’s uniform policies did not infringe upon the student’s

rights” (“Jacobs v. Clark County School District,” n.d.). This case also involves a school

suspension and contains supportive “con” evidence because the school stated that their policy did

not infringe upon Jacobs rights. In the case of Bill Foster, the school he attends could also argue

that their policy prohibiting wearing gang symbols did not infringe upon his rights. The school

could argue that the policy was made because gang activities were prevalent at the school and
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their concern to protect the students outweighed Foster’s rights to express himself freely by

wearing an earring. This case could be used as supportive evidence for the school that Foster

attends.

After considering the “pros” and “cons” of each side and researching numerous court

rulings associated with the matters at hand, I believe that Bill Foster being suspended for wearing

an earring would not and should not be justified. Foster is a student who was not involved with

gang activities, he deserves the right to freely express himself and not have his free expression

rights violated. In a case such as Brandenburg v. Ohio (1969) the court ruled that the Ohio law

violated Brandenburg’s right to free speech. Brandenburg was a man of crime with negative

intentions. Foster could argue that his suspension violated his free expression rights and that it

wasn’t justified. He didn’t even receive a warning nor was he asked to remove the earring prior

to him being suspended. The evidence was not sufficient enough to sustain the verdict. Bill

Foster missed out on classroom experiences and lost the opportunity to express himself which is

something he was doing innocently.

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References

B.H. v. Easton Area School District. (n.d.). Retrieved from https://caselaw.findlaw.com/us-3rd-

circuit/1640994.html

Brandenburg v. Ohio. (n.d.). Retrieved from https://www.oyez.org/cases/1968/492

Jacobs v. Clark County School District. (n.d.). Retrieved from https://caselaw.findlaw.com/us-9th-

circuit/1204345.html

Tinker v. Des Moines. (n.d.). Retrieved from https://www.oyez.org/cases/1968/21