Running head: ARTIFACT #3 STUDENT EXPRESSION 1

Artifact #3 Student Expression

Arizbeth Zavala

College of Southern Nevada

EDU 210
ARTIFACT #3 2

Abstract

Established in the Constitution are the First and Fourteenth Amendments which partake a critical

role in education law. The First Amendment, grants the freedom of speech, press, assembly, and

religion. The Fourteenth Amendment contains two clauses: The Equal Protection Clause and the

Due Process Clause, which specifically pertains to school litigation. As described in the

textbook, Legal Rights of Teachers and Students, due process ensures fundamental fairness if the

government threatens an individual’s life, liberty, or property interests (pg. 7). As we study

education law, it is essential to understand the restrictions of the First Amendment because

students continue to test the limits of their personal freedoms in private forums such as public

schools. As future educators, it is our responsibility to ensure comprehension of these

amendments so that we are prepared when determining if the expression of a student has

surpassed constitutional protections.

Keywords: Freedom of Speech, student, Constitutional Protections

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Student Expression

Bill Foster, a high school student in the northeastern United States, was suspended from

school because he wore an earring as a form of self-expression and to attract the attention of his

female classmates. Prior to his suspension, his high school had instituted a policy that forbid the

wearing of gang symbols such as jewelry, emblems, earrings, and athletic caps because of

widespread gang activity that was noticed around campus. Because Bill Foster was not a gang

member and believed his freedom of expression rights were violated, he filed suit.

As noted by Cambron-McCabe, McCarthy, and Eckes, “students have the right to express

nondisruptive ideological views at school, however, restrictions can apply when the expression

represents the school (pg. 96).” Potentially, public school officials may abridge student

expression, but they must have significant reasons to do so. If a student is reprimanded or

suspended for exercising their First Amendment rights, the student can utilize due process to sue

the school district. If the case surpasses state jurisdiction, the Supreme Court must then rely on

previous cases influenced by freedom of expression to reach a verdict. Preceding court cases like

Tinker v. Des Moines, B.H. v. Easton Area School District, Bethel School District No. 403 v.

Fraser, and Chalifoux v. New Caney Independent School District either support the suspension

or the readmission of Bill Foster. Based on these court cases and our judgement as Nevada

education law students, we must conclude whether the Supreme Court would rule in favor of or

against Bill Foster.

Defendant’s Defense

The federal government and local school boards do not deny students the right to express

themselves verbally, in print, electronically, through appearance, or by the clubs and groups they

join, regardless of unpopular opinion. However, students may not express themselves in ways
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that can promote violence, illegal activity or disrupt the learning of others and operations of the

school. In the 1969 case, Tinker v. Des Moines Independent School District, the Supreme Court

recognized that students may express opinions on controversial topics around campus as long as

their expression does not interfere with the requirements of appropriate discipline in the

operation of the school or invade the rights of others (Cambron, McCarthy, & Eckes, 2014). In

this case, three students were suspended because they protested the Vietnam War by wearing

black armbands to school. Once notified of the silent protests that were to occur, administrators

met and created a policy that forbid the wearing of armbands. After their suspension, the

Supreme Court ruled in favor of the students and stated that educators have the authority to

maintain discipline in school but they must also be considerate of students’ constitutional rights

as they exert control (Cambron, McCarthy, & Eckes, 2014). In the stance of Bill Foster, his

decision to wear an earring attracted attention to his persona. The school prohibited the wearing

of earrings because of its relation to gang activities and by him disregarding the policy, he

silently expressed that school rules were unimportant to him. Additionally, he gave the

impression that he is affiliated with gangs although he claims he is not. Ultimately, he could have

incited violence and could have bestowed danger upon himself and the school if he were

confused for a gang member. Because Bill Foster’s expression does not regard controversial

topics and he carelessly promoted gang activity, the Supreme Court would uphold his

suspension.

In B.H. v. Easton Area School District, two middle schools students expressing their

support for breast cancer prevention were suspended for wearing their “I Love Boobies! (Keep a

Breast)” bracelets. Initially, school administrators had no problems regarding the bracelets.

However, before the school’s designated Breast Cancer Awareness Day, school officials’
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attitudes changed and the assistant principal sent an email instructing faculty members to ask

students wearing the bracelets to remove them. (DeMitchell and Fossey). Following their

suspensions, the students and their parents immediately filed suit alleging their First Amendment

Rights were violated. The district court ruled in favor of the students because the bracelets did

not expose lewd or vulgar language and they were directly related to breast cancer awareness.

The school district appealed to the Third Circuit but they were unsuccessful because the Third

Ciruit upheld the decision of the federal district court (Bomboy 2014). Regarding Bill Foster, the

court would use B.H. v. Easton to conclude that he was not participating or promoting the

prevention of a public concern and that his disobedience was solely based on the reactions he

was hoping to obtain from the young ladies at his school.

Plaintiff’s Defense

To challenge his suspension, Bill Foster could apply the 1986 court case, Bethel School

District No. 403 v. Fraser to claim that his form of self-expression was not lewd, vulgar, or

indecent. In Bethel v. Fraser, a high school student was disciplined for using a sexual metaphor

in a nomination speech during a student government assembly. Contradicting the decision of the

lower courts, the Supreme Court supported the student’s punishment because they believed that

the school’s legitimate interest in protecting its student audience from exposure to lewd and

vulgar speech validated the suspension (Cambron, McCarthy, & Eckes, 2014). As a result of this

case, the Supreme Court has granted school authorities vast freedom in censoring lewd, vulgar,

and indecent student expression. Considering that Bill Foster only expressed himself by wearing

an earring, he could argue that he did not negatively affect the sensibilities of his fellow peers

nor did he cause a distraction that was offensive to both teachers and students. If the Supreme
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Court found Bill Foster’s self-expression to be protected, the school would then have to

demonstrate that by wearing the earring, he caused gang related conflicts.

Similarly, the 1997 court case, Chalifoux v. New Caney Independent School District

addressed gang related apparel. Two students who wore rosaries around their necks to express

religious faith, were approached by school police. They were asked to tuck their rosaries inside

their shirts because rosaries were currently worn by gang members. Although both school police

and school officials knew that these students were not affiliated with gangs, and that no gang

members had approached them, they still prohibited them from displaying rosaries around

campus. Because the students believed their First Amendment rights of freedom of speech and

religious expression were violated, they instantly filed suit (“Chalifoux”). The Supreme Court

ruled in favor of the students because the school failed to provide a handbook that accurately

listed the prohibited gang-related items. Furthermore, the principal falsely claimed that his office

had available various materials prepared by the police department that contained information on

gangs and their related apparel (“Chalifoux”). If Bill Foster proved that his school was not in

possession of a handbook that listed earrings as gang related apparel, his defense team could

argue that policies cannot be enforced if they are only verbal. Knowing that there is no policy in

print, the Supreme Court could reason that Bill Foster’s suspension was invalid.

Assessment of Outcome

Considering the verdicts of four different court cases, the constitutional rights of Bill

Foster were not violated. Although he is free to self-express with the apparel of his choosing

outside school hours, Bill Foster was fully aware that earrings were prohibited at school because

of their connection to gangs. The Supreme Court would use Tinker v. Des Moines to indicate

that he was not silently protesting controversial topics and that his behavior could have incited
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undesirable gang activity. Moreover, they would apply B.H. v. Easton to confirm that his

noncompliance with school policy was a product of his independent desire for attention from

girls. By disobeying school policy and wearing earrings, The Supreme Court would not dispute

that Bill Foster subjected himself to disciplinary action like suspension.

Conclusion

To recapitulate, the courts have recognized that students have the right to express their

opinions and views as long as they do not disrupt the normal functions of the school. However,

at times, students have tested the limits of their personal freedoms and have failed to realize that

school officials can abridge their expressions in private forums when enough reason exists. As

previously mentioned, Bill Foster subjected himself to disciplinary action when he decided to

disregard school policy and wear earrings as a form of self-expression. To uphold his suspension,

the Supreme Court would apply Tinker v Des Moines to recognize that Bill Foster was not

silently protesting anything. In fact, he was unknowingly promoting gang association.

Additionally, they would rely on B.H. v. Easton to demonstrate that he did not wear an earring to

participate in the prevention or awareness of any public related concern. Yet, if Bill Foster

believed his First Amendment rights were violated, his defense team could use Bethel v. Fraser

to prove that his expression was not indecent nor did it unfavorably affect the innocence of his

fellow classmates. The court case Chalifoux v. New Caney would also serve to his defense if he

could prove that prohibition of earrings because of its relation to gangs was not listed in the

student handbook or anywhere in print. Nonetheless, based on the outcomes and comparison to

the above mentioned court cases, the Supreme Court would rule in favor of the school district

and uphold the suspension of Bill Foster.

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References

Bomboy, S. (2014, March 10). Update: How the “Boobies” Case Almost Made it to the Supreme

Court. Retrieved April 15, 2018, 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). Legal Rights of Teachers and

Students. Upper Saddle River, NJ: Pearson.

“Chalifoux v. New Caney Independent School Dist., 976 F. Supp. 659 (S.D. Tex. 1997).” (n.d.).

Retrieved April 15, 2018, from https://law.justia.com/cases/federal/district

courts/FSupp/976/659/1582548/

DeMitchell, T.A., & Fossey, R. (n.d.). B.H. v. Easton Area School District. Retrieved April 15,

2018, from https://educationlaw.org/featured-caselaw/6511-bh-v-easton-area-school

District