Running Head: STUDENT’S RIGHTS !

Student’s Rights and Responsibilities: Board of Education v. Foster

Buffy M. Thomas

College of Southern Nevada

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Abstract

This paper examines the possible outcome of student Bill Foster’s suit filed against the Board of

Education in violation of his First Amendment right of expression. A brief overview of the First

and Fourteenth Amendments of the United States Constitution is given, as it applies to students’

rights. The following Supreme Court Cases are used for discussion of the opposing views of

Foster’s case: Tinker v. Des Moines Independent Community School District ( 1969), Chalifoux

v. New Caney Independent School District (1997), Olesen v. Board of Education (1987), and

Bethel School District v. Fraser (1986). The examiner gives a detailed analysis of how the above

court cases are relevant to Bill Foster’s situation. Based on the court cases presented, the

reviewer finds that Bill Foster’s expression of individuality was not protected under the First and

Fourteenth Amendment rights, nor from the school’s disciplinary action.


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Student’s Rights and Responsibilities: Board of Education v. Foster

The case under review involves Bill Foster, who attends a large, high school in the

northeastern part of the United States. Due to a strong gang presence in the high school, the

administrators created a strict policy which denies students the wearing of earrings, jewelry,

athletic caps, and emblems. Foster was suspended for wearing an earring to school. He claims

that wearing the earring was a form of his self expression and individuality; his intention was not

as a gang emblem, but rather a means to attract girls. Foster is suing the school district for

violation of his freedom of expression right, guaranteed under the First Amendment of the

United States Constitution.

The First Amendment of the United States Constitution protects its citizens from the

government prohibiting a citizen’s right to the freedom of speech. The Fourteenth Amendment

applies that right to the states, as well as guarantees that a State cannot “deprive any person of

life, liberty, or property, without due process of law” (“The Charters of Freedom,” 2015).

Constitutional rights apply, not only to adults, but to students as well. As citizens of the United

States, a student’s right of expression and due process are protected in a school setting. Much

like teachers’ constitutional rights, a student’s interest of expression are weighed against a school

board’s interest in providing educational services. Furthermore, the courts have established that

a student has a “property right to an education” (Cambron-MacCabe, McCarthy, Eckes, 2014, p.

173) and cannot be disciplined by means of expulsion or suspension without, “some type of

procedural due process” (p. 173), such as adequate notice and a legal hearing. Exercising his

First and Fourteenth Amendment right of: liberty, his freedom of expression; property, his right

to an education; and due process, through a legal hearing—Bill Foster filed a suit.
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The question at hand is, does Bill Foster’s constitutional rights protect his freedom of

expression through the wearing of an earring to school? His counsel argues affirmatively.

Pointing to the infamous case of Tinker v. Des Moines, Foster’s attorney argues that Bill Foster’s

wearing of an earring causes no more disturbance to the school than Mary Beth Tinker’s wearing

of an anti-Vietnam war armband to school. Similarly, Mary Beth Tinker, and her brother John

Tinker were suspended from school for wearing the anti-war armband in defiance of school

policy. In their case, the court found that the school cannot curtail the First Amendment rights in

“undifferentiated fear or apprehension of disturbance” (Cambron-MacCabe, McCarthy, Eckes,

2014, p. 98). Likewise, Foster’s attorney disputes Bill Foster’s First Amendment rights cannot

be abridged in anticipation of a disruption.

In addition, Foster’s attorney identified his case with that of Chalifoux v. Caney

Independent School District. Much like Foster’s school, David Chalifoux’s school banned the

wearing of rosaries due to the gang related symbolism. David Chalifoux and Jerry Robertson

were both placed on academic suspension for wearing rosaries to school. In that case, the school

district was unable to show sufficient evidence that the wearing of rosaries was predominately

gang related. David Hittner, US District Judge, wrote: “surely there are a number of more

effective means available to [the school district], other than a blanket ban on wearing rosaries, to

control gang activity and ensure the safety of its schools” (Hudson Jr., D., 2015). Likewise,

Foster’s defense reasons, prohibiting the wearing of earrings is too broad and the school should

choose a more effective way protect the children that does not infringe on constitutional rights.

Counsel for the Board of Education countered Foster’s claim of infringement of his

freedom of expression, by establishing that the school’s sole purpose of the policy is providing a
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safe academic environment for Foster and the rest of their students. The defense looked to

Olesen v. Board of Education of School District No. 228, where a similar case of a ban on

earrings was enacted as an anti-gang strategy. High school student, Darryl Olesen, Jr. was

suspended after wearing an earring to school in direct violation of the school’s anti-gang policy.

Olesen claimed the freedom of expressing his individuality was being infringed upon and in

opposition of his First Amendment rights. The Court disagreed, however, countering that his

message of “individuality” was not sufficient enough to outweigh the school’s need to keep their

students safe. In this case, the school had sought outside consultation from police departments

and other schools with gang activity to find the best means to curb gang activity within the

school. The anti-gang policy proved to reduce gang related activity at the school.

Correspondingly, Foster’s high school has found significant reduction in gang related activity

since enacting the earring ban. Further, counsel argues, Foster’s message of “individuality” is

not sufficient enough to outweigh the school’s need to keep their students safe.

Additionally, the Board of Education references Bethel School District v. Fraser (1986).

During a student assembly, Senior Matthew Fraser gave a campaign speech to elect his friend to

student government. Fraser’s speech was rife with sexual innuendo. Consequently, he was

suspended and his name removed from the list of possible graduation speakers—he was second

in his class at the time. In this case, the Court established that there is a monumental difference

between the First Amendment protection of expression for “dealing with a major issue of public

policy and the lewdness of Fraser’s speech” (“Key Supreme Court Cases,” 2015).

Comparatively, Foster’s high school points out that there is a monumental difference between

Foster’s desire to express his individuality and impress the girls, and the school’s desire to
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regulate the serious public concern of gang activity within the school. Indeed, in the petitioner’s

application of Tinkering and Chalifoux court cases, the defense notes, in both First Amendment

cases the students were addressing a major public issue—political and religious statements.

Foster’s message of individuality, however, decidedly lacked a message that would safeguard his

First Amendment right.

In conclusion, this court finds that the Board of Education’s responsibility for student

safety; promoting the educational process; thus, ensuring each student’s “property right to an

education,” (Cambron-MacCabe, McCarthy, Eckes, 2014, p. 173) curtails Bill Foster’s right to

wear an earring as a form of his self expression and individuality. Furthermore, Foster’s

expression is not constitutionally protected because of his reason for wearing the earring. The

courts have established, “Where conduct is meant to communicate an idea that is likely to be

understood by the intended audience, it is considered expression for First Amendment

purposes” (p. 96). Bill Foster’s decision to wear an earring as a means of expressing his own

individuality and attracting female attention, does not qualify for expression protected by the

First Amendment. Hence, the court rules in favor of the Board of Education’s right to enact anti-

gang policy, as well as, discipline those students who do not comply with the regulation.

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References

Bethel School District v. Fraser, 478 U.S. 675 (1986).

Cambron-MacCabe, N.H., McCarthy, M.M., Eckes, S.E. (2014). Legal rights of teachers and

students. Boston: Pearson.

Chalifoux v. New Caney Independent School Dist., 976 F. Supp. 659 (1997).

Hudson Jr., David (n.d.). First Amendment Center. Retrieved October 21, 2015, from http://

www.firstamendmentcenter.org/students-should-be-free-to-wear-rosary-beads.

Key Supreme Court Cases: Bethel School District v. Fraser (ABA Division for Public

Education). (n.d.). Retrieved October 21, 2015, from http://www.americanbar.org/groups/

public_education/initiatives_awards/students_in_action/bethel.html.

Olesen v. Board of Education, 676 F. Supp. 820 (N.D. Ill. 1987)

The Charters of Freedom. (2015, October 20). Retrieved from http://www.archives.gov/exhibits/

charters/constitution_amendments_11-27.html.

Tinker v. Des Moines Independent Community School District, 393 U.S. 503 ( 1969)

Tinker v. Des Moines Independent Community School District. (n.d.). Oyez. Retrieved October

20, 2015, from https://www.oyez.org/cases/1968/21.