Running Head: ARTIFACT #4 1

Artifact #4: The Freedom of Choice in Dress

Olivia M. Norman

College of Southern Nevada

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More and more schools across the United States are implementing dress codes or

uniforms for students. Bill Foster was attending one such school, when he was suspended for

wearing an earring. The school had banned earrings, along with several other gang symbols, in

response to gang activity. Foster was not in a gang and sued for his freedom of self-expression

being infringed upon.

Brianna Stephenson sued over a dress code similar to that of Fosters school. The

Davenport School District stated that "gang related activities such as display of 'colors', symbols,

signals, signs, etc., will not be tolerated on school grounds. Students in violation will be

suspended from school and/or recommended to the Board for expulsion (Stephenson v.

Davenport, 1997). Stephenson felt that the ban was too broad because no definition of [g]ang

related activities or colors', symbols, signals, signs, etc., id., exists in the regulation

(Stephenson v. Davenport, 1997) and therefore she should not be expected to adhere to said

regulation. Although Stephenson did remove her tattoo, which was in question of violation, she

later sued the district for violating her freedom. As a result of the courts findings, the school

district rewrote their definition of gang symbols to match those of the state in order to avoid

being too vague. Applying this standard to Fosters case, the school would need to revise their

definition of gang symbols to be more specific. Unless it is proven that all earrings can be

construed as gang symbols, the school districts would need to state which types, colors, or shapes

of earrings are deemed gang-related.

Tinker v. Des Moines set the precedent for freedom of expression within schools. The

court said students dont shed their constitutional rights to freedom of speech or expression at

the schoolhouse gateas long as an act of expression doesn't disrupt classwork or school

activities or invade the rights of others (Tinker v. Des Moines, 1969). This case has long since
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been the standard by which to judge other cases and can be applied to Fosters situation. The

school did not adequately prove that Fosters earring disrupted the school in any way, nor did he

invade fellow students rights.

In Palmer v. Waxahachie, Palmer was told that his shirts violated the schools dress code.

Rather than wearing them anyway and risk suspension, such as Foster, Palmer submitted three

shirts to the vice- principal for approval. When the vice-principal denied the approval, Palmer

went to the principal, and then the superintendent. When each level of administration denied his

request to have the shirts approved, Palmer sued for violation of his freedom of speech. The

courts upheld the districts choice to enforce the dress code policy stating the means [of

allowing student freedom of speech] do not necessarily have to be related to messages on

clothing or buttons. Instead, schools can allow students to communicate their messages through

other avenues, such as orally at school or through their written work (Palmer v. Waxahachie,

2009). Likewise, Foster could have expressed himself, and his sense of style, in other ways that

did not violate the schools dress code.

Courts have previously upheld a schools right to limit clothing, such as in the case of

Boroff v. Van Wert City Board of Education. Nicholas Boroff was told that he could not attend

school wearing a t-shirt that the school felt went against their mission statement. He sued stating

that the school was violating his rights, however, the court found that where Boroff's T-shirts

contain symbols and words that promote values that are so patently contrary to the school's

educational mission, the School has the authority, under the circumstances of this case, to

prohibit those T-shirts (Boroff v. Van Wert City Board of Education, 2000). Fosters school

established that earrings went against their desire to keep a safe environment at the school. While

Foster may not have directly been disruptive, the school deemed earrings as gang-related and
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gangs inherently are disruptive. Because they felt his attire went against their mission of a

school, the school was within their rights to establish a dress code.

As of late, courts tend to be siding more often with the schools, rather than the students,

when it comes to dress codes, provided the school has a legitimate reason. Even in the case of

Stephenson v. Davenport, where the district decided to change the language of their policy, the

courts did not formally side with the student, but rather the district took a pro-active approach to

avoid further suits. Because Foster attends a school in a north-eastern state, it is most like that he

is in a state that regards dress as a protected form of expression. However, even in these states, a

school can still enforce some dress policies if the attire is materially and substantially

disruptive, pervasively vulgar, or harmful (Underwood & Webb, 2006). Fosters school will in

due course need to change its wording to avoid vagueness, as in Stephensons case, but

ultimately the school has a legitimate stance of protecting the students from disruptive situations

and potential harm.

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References

Boroff v. Van Wert City Board of Education, 240 F.3d 465, 6th Cir. (2000). Retrieved from

http://caselaw.findlaw.com/us-6th-circuit/1210620.html.

Palmer v. Waxahachie Independent Community School District, 579 F.3d 502,5th Cir. (2009).

Retrieved from http://caselaw.findlaw.com/us-5th-circuit/1251036.html.

Stephenson v. Davenport Community School District, 110 F.3d 1303, 8th Cir. (1997). Retrieved

from http://caselaw.findlaw.com/us-8th-circuit/1097522.html.

Tinker v. Des Moines School District, 393 U.S. 503. (1969). Retrieved from

http://caselaw.findlaw.com/us-supreme-court/393/503.html.

Underwood, J., Webb, L. (2006). School Law for Teachers: Concepts and Applications. Upper

Saddle River, NJ: Person Education, Inc.