Freedom of Expression 1

Freedom of expression in schools

Bella Sanabria-Roman

College of Southern Nevada

Freedom of speech 2

Abstract

In this paper I will seek to explore freedom of expression in public schools as it pertains to Bill

Foster, a student who wore an earing to school as a show of self-expression, and was thereafter

suspended for this act. The student claims that this infringed on his freedom of expression and

was in no way gang related. He stated that he believed it was attractive to young women at the

school and that was the purpose of his accessory. However, the school stated that this was in their

policy in order to prevent the showing of gang affiliation that was prevalent at their school. The

policy stated that the wearing of gang symbols such as jewelry, emblems, earrings, and athletic

caps is prohibited. I will explore the different grounds both parties have through relevant court

cases pertaining to the subject.

Keywords: Freedom of expression, court case, dress code

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Freedom of expression in schools

Summary

Bill Foster, a student at a large high school in the northeastern United States, was recently

suspended for wearing an earing to school. The school stated that they had a policy in place,

which prohibited the wearing of gang symbols such as jewelry, emblems, earrings, and athletic

caps. Bill Foster said that his earing was completely unrelated to any gang affiliation. He

explained that his reason for wearing the earing was that he was under the belief that it would be

attractive to female students. He claims the earing was a form of self-expression and that school

impeded upon his right to freedom of expression and consequently filed suit.

Arguments

For School District

The school that suspended Bill Foster from school after he violated a dress code policy

and the first case I will be using to argue the basis that they were justified in doing so is Tinker vs

Des Moines School Dist (1969) In this case three public school students were suspended for

wearing armbands while protesting. The Supreme Court held that They were not disruptive and

did not impinge upon the rights of others. In these circumstances, their conduct was within the

protection of the Free Speech (Underwood) However, in the case of Bill Foster because of the

nature of his school and its relation to gang activity his earing can be classified as disruptive. If

a student involved in a gang had mistaken his earing for a sign of affiliation to a rival gang it

could have disturbed the learning environment. The court also further stated in Tinker vs Des

Moines (1969) that 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
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not permissible under the First and Fourteenth Amendments. (Underwood) However, in this

case the policy was necessary to avoid substantial interference with school discipline or the

rights of others. The school could argue that if they did not suspend him for wearing the earing

it might invite other students who use it as a way to state their gang affiliation to begin wearing

them as well. If this begins to occur students could begin to fight and it would impede upon the

rights of other students to have a safe environment at school.

The second case I will be presenting in support of the school districts suspension of Bill

Foster is Hazelwood School District v. Kuhlmeier (1968) In this case students had written articles

in the newspaper on divorce and pregnancy. These articles were written by the schools

journalism class and upon completion were sent to the principal. The principal objected to

publishing the pieces because he said that, although anonymous, the pregnant student might still

be indefinable. He also found some of the stories to be inappropriate for a school audience.

(underwood) Although not the same circumstance the court did rule in this case that, First

Amendment rights of students in the public schools are not automatically coextensive with the

rights of adults in other settings, and must be applied in light of the special characteristics of the

school environment. (underwood) With this in mind the school had grounds to suspend Foster

because although his rights in another setting would have been violated, he was on school

grounds in a school setting. Therefore, in this setting the special circumstances were that the

previous incidents of prevalent gang activities at school made the wearing of the earing a form of

free expression not protected under the constitution. Although under normal circumstances

Foster would be protected under freedom of expression in this circumstance his earing is

inconsistent with its basic educational mission (underwood) when taking into consideration the

schools history with gang activity.

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For Bill Foster

Tinker vs Des Moines School Dist (1969) Is the first case I will be using to argue for Bill

Foster. In this case the tinker standard was established. The standard states the prohibition of

expression of one particular opinion, at least without evidence that it is necessary to avoid

material and substantial interference with schoolwork or discipline, is not constitutionally

permissible. (underwood) In this case Fosters earing was not interfering with schoolwork or

discipline. His earing was not gang related and did not impede upon the rights of other students

learning. He had gone previously throughout the day without incident and therefore his earing is

not disruptive and is a protected form of expression.

The case Stephenson v. Davenport Community School District (1997) is the

second case I will be using in support of Bill Foster. In this court case Brianna Stephenson

tattooed a cross between her thumb and index finger. For the next thirty months she wore the

cross without incident. (FindLaws) Her intention was for her tattoo to be a form of self-

expression and did not intend for it to be gang related. Eventually, she was forced cover the

tattoo and eventually to remove it via laser treatment to remove the tattoo. In this case the court

upheld that the policy was void because it was vague. The court stated The District regulation

suffers from an additional defect because it allows school administrators and local police

unfettered discretion to decide what represents a gang symbol (FindLaws) This creates a vague

rule since it must be evaluated on a student to student basis. The court even stated the District

regulation violates the central purposes of the vagueness doctrine because it fails to provide

adequate notice regarding unacceptable conduct and fails to offer clear guidance for those who

apply it. (FindLaws) Similarly, as with the case of Bill Foster the policy of the school should

be voided because it is vague. The school was not clear on what type of jewelry was affiliated
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with gang activity and therefore should not have been expelled. Someone who is not involved

with gangs could not have been aware that they were in violation of such a rule when it was not

made clear to them what the rules were.

Conclusion

In conclusion, I believe that the courts would most likely be in favor of the school

district. I feel this way because considering the schools previous history with gang activity they

might be hesitant to create a way for students to show affiliation while claiming to be unaware.

In general I feel that it would ultimately be for the rights the other students have to a safe

school. However, I do feel that the rules should be less vague and that if Bill Foster is still on

suspension that it should be lifted. The school should then clearly address the rules and make

every student and parent aware of what they deem to be gang affiliation so that vagueness is

eliminated.
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References

FindLaw's United States Eighth Circuit case and opinions. (n.d.). Retrieved October 27, 2016,

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

Underwood, J., & Webb, D. L. (n.d.). Landmark Cases. Retrieved October 27, 2016, from

http://wps.prenhall.com/chet_underwood_schoollaw_1/42/10992/2813993.cw/index.html