Running Head: Artifact #3 1

Artifact #3
Dara Marquez
Nevada School Law EDU 210
College of Sothern Nevada
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Abstract

The scenario of Bill Foster, the plaintiff, being suspended for wearing an earring to his high

school, where such accessorizing is prohibited, is what Artifact #3 will discuss. Freedom of

expression regarding students is what is being addressed through this scenario; both sides of the

situation will be discussed. While arguing each side, two court case decisions will be used for

supporting viewpoints. The Artifact will end with a conclusion, which will review the overall

assignment and will include my personal thoughts and the decision I lean towards for this case’s

outcome.
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Bill Foster, a high school student, is attending a school that has gang activity. Due to the

gang activity, the school developed a policy that prohibits wearing of gang symbols such as

jewelry, emblems, earrings, and athletic caps. Bill is not involved in a gang and chose to wear an

earring because he thought it would appeal to the female students at his school and for self-

expression purposes. Since wearing earrings is prohibited, Bill was suspended; he filed suit.

The U.S. Supreme Court stated, “neither students or teachers shed their constitutional

rights to freedom of speech or expression at the schoolhouse door.” Keeping that in mind, the

first side discussed will be that of Bill Foster. One of the concerns with this case deals with the

First Amendment and whether Bill Foster’s freedom of expression was violated. There are two

cases that can help support Bill’s side and argue that, yes, his First Amendment rights were

violated. The First Amendment protects freedom of speech, including the freedom of

expression. Although Bill is a student and not an adult, he too is protected by the First

Amendment.

The 1986 case of Bethel v. Fraser can be used to argue Bill Foster’s side. Bethel v.

Fraser occurred when a high school student made a speech to the school which contained vulgar

and obscene language of a sexual nature. The court ruled in favor of the school and the

discipline was upheld (Free Speech in School: Student Rights n.d.). When using Bethel v.

Fraser, Bill can argue that his choice of personal expression had no obscene or vulgar value to it

whatsoever, thus proving that he should be protected by the First Amendment.

Another case’s ruling that can aid in supporting Bill Foster’s side is the 1969 case of

Tinker v. Des Moines Independent School District. This case takes us back to the time when the

Vietnam War was being fought. Freedom of speech was becoming an issue for schools for the

first time due to such extreme opinions on both ends of those either supporting or opposing the
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war. In this case, three students were suspended for wearing a black arm band to signify their

anti-Vietnam War point of view. The students were found to be in the right and the school to be

in the wrong (Free Speech Lawsuits Involving Public Schools. (n.d.). “…the school must show

more than a desire to avoid the discomfort and unpleasantness that accompany unpopular

viewpoints.” (Underwood, J., & Webb, L. 2006). Another important aspect of the Tinker case is

that it set a standard whereby schools have authority to regulate students’ rights if the exercise of

the rights might be reasonably predicted to cause a material and substantial disruption or

invasion of the rights of others (Underwood, J., & Webb, L. 2006). When applying that standard

to Bill Foster’s, case the school has shown no reasonable prediction supporting disruption due to

him wearing an earring. Due to that fact, he should be protected.

There is something else that can be added to the arguing side that supports Bill Foster,

and that is the rights protected by the 14th Amendment. The 14th Amendment provides us the

right to equal protection of the laws along with giving the right to due process of law. Bill Foster

was entitled to due process and, with such a right, can be heard and given a trial. The school also

had to provide documentation of the disciplinary action taken and the reason(s) behind it.

After covering cases that support Bill Foster’s, side the opposite side will now be covered

and supported in the same manner by using previous case decisions. The first case for

supporting the school is the 1997 case of Chalifoux v. New Caney Independent School District.

In the case of Chalifoux v. New Caney, David Chalifoux, a high school student, wore a rosary on

the outside of his clothes and by doing so incurred the discipline of suspension on the basis that it

was against dress code. CHALIFOUX v. NEW CANEY INDEPENDENT SCHOOL DIST.,

2015). The reason behind such a strict dress code on the school’s part is because they wanted to

limit ways students could use accessories as gang membership identifiers. They had an incident
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in which students had worn rosaries on the outside of their clothing as a sign of showing gang

affiliation. What Chalifoux had in his favor is the knowledge that he was not a member of any

gang, nor had he had any contact from gang members in response to the rosary. Another fact

that Chalifoux used to support his case was that nowhere in the handout defining the dress code

did it have rosaries listed as prohibited items. Once the case was heard, the court ruled in favor

of David Chalifoux. The court said that he was protected under the First Amendment and that he

had the freedom to exercise his religious beliefs through wearing the rosary to express himself

and his religion. The dress code was too vague to be able to uphold the restriction of the rosary.

While this case ruled in favor of the student and not the school, what the case did was draw

attention to the fact that dress codes have to define exactly what is prohibited. This particular

case is a strong supporter in the case against Bill Foster and for the school because in his

school’s dress code it does specifically list earrings as being against dress code. The school can

also use this case to point out that Foster simply wanted to wear the earring as a means of

attracting young ladies and not to express his religious beliefs.

The last case to be looked at is the 1987 case of Olesen v. Board of Education School

District No. 228. This case will also be used to support the side in favor of the school. In Olesen

v. Board of Education, Darryl Olesen, Jr. is a high school student, and he is suspended due to

breaking the dress code of a male student wearing earrings. The school has strict anti-gang

policies and restricting the dress code is among them. The school’s dress code prohibits male

students from wearing earrings. Olesen had worn earrings and been suspended prior to this

incident, as well. He decided he would file suit against the school saying that his First and 14th

Amendment rights had been violated. The court found that Olesen’s rights had not been violated

and that the school had the authority to uphold their dress code and actions (Olesen v. Board of
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Educ. of School Dist. No. 228, 676 F. Supp. 820 (N.D. Ill. 1987), 2016). This case is closely

related to that of Bill Foster against his school because in both instances the concern of rights

being violated were the rights protected by the First and 14th Amendment. The court in Olesen v.

Board of Education found that neither his First or 14th Amendment rights had been violated and

the school can use that verdict to support their side when in trial by stating that they too had

earrings specifically prohibited and specified as part of their dress code and that they gave him

his due process through suspension. Also the dress code is applied to all male students and he is

not being denied the protection of the laws as stated in the 14th Amendment.

In conclusion, after reviewing the four above mentioned cases more closely for this

assignment and taking the given scenario into account, I feel that the courts would be right to

decide in favor of the school. Bill Foster is in the wrong due to the dress code being specific

about earrings being prohibited. The earrings were not a form of religious expression and I feel

that he should be held to the dress code standards. Aside from that, the fact that the dress code

restrictions in relation to earrings is due to gang activity, it should be upheld at all times as a

safety precaution. Yes, it is my opinion that the school was in the right.
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Reference

CHALIFOUX v. NEW CANEY INDEPENDENT SCHOOL DIST. (2015). Retrieved

October 26, 2016, from
http://www.leagle.com/decision/19971635976FSupp659_11551/CHALIFOUX v.
NEW CANEY INDEPENDENT SCHOOL DIST.

Free Speech in School: Student Rights. (n.d.). Retrieved October 26, 2016, from
http://education.findlaw.com/student-rights/student-rights-and-free-speech.html

Free Speech Lawsuits Involving Public Schools. (n.d.). Retrieved October 26, 2016, from
http://education.findlaw.com/student-rights/free-speech-lawsuits-involving-
public-schools.html

Olesen v. Board of Educ. of School Dist. No. 228, 676 F. Supp. 820 (N.D. Ill. 1987).
(2016). Retrieved October 26, 2016, from
http://law.justia.com/cases/federal/district-courts/FSupp/676/820/1626122/

Underwood, J., & Webb, L. (2006). School Law For Teachers Concepts and
Applications. Upper Saddle River, New Jersey: Pearson Education.