Running Head: VIEWING STUDENTS EXPRESSIONS 1

Viewing Students Expressions and Rights

Evelyn Morales-Ramirez

College of Southern Nevada

March 22, 2016

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Abstract

This paper will address a case where a students’ right to expression will be viewed as to whether

it is being violated by the school he is attending or not. Both sides of the case will be discussed

and in the end a decision must be made determining whether the school acted in an appropriate

and constitutional manner or violated the students’ rights. As a result of the analysis done on

both sides, it is determined that the school does not violate the student’s rights and have the right

to prohibit the students from acting in the way presented in the case.
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Viewing Students Expressions and Rights

When talking about rights in schools, it is important to acknowledge that students have

rights as well. Students have the same rights as teachers when it comes to speech, expression,

religion, etc. Although they share similar rights, there are still certain expressions or actions that

might not be protected under them. There have been many situations in the past where students’

rights have been questioned on whether they are protected or not. In Bill Foster’s case, his

freedom of expression is what was in question. He attended a large high school in the

northeastern United States where they started a policy prohibiting the wearing of gang symbols

that included jewelry, emblems, earrings and athletic caps. The policy was created due to gang

activities that were common in the school. Bill Foster, being free of any gang involvement, wore

an earring to school as a form of self-expression and because he believed it was attractive to

young ladies. Due to his act of wearing an earring that was believed to be a gang symbol he was

suspended and he filed suit.

One case that would support Bill Foster is Chalifoux v New Caney Independent School

District. In this case two male students at New Caney High School began to wear rosaries

outside of their shirts as a way of displaying their religious faith. They wore their rosaries

without getting any comments from the administrators for several weeks and were not members

of any gang. After wearing their rosaries for many weeks without any problem they were

approached by police officers on campus and were told that they could not wear their rosaries

outside of their shirts, but could wear them inside. The two boys were told that the school had

identified rosaries as gang related apparel which prohibited them from wearing them on campus.

The school’s student handbook did not specifically list rosaries under the list of gang related

apparel that was prohibited on school campus, but they were told it was considered as such. They
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were suspended as a result of continuing to wear the rosaries and consequently filed for suit since

they viewed that as a violation of their First Amendment rights, more specifically their rights to

free exercise of religion. The case went in favor of the two boys as the rosaries were considered

to be a form of symbolic speech which is protected under the First Amendment. Although

Foster’s case does not deal with religion, it still deals with freedom of speech and expression.

Bill Foster wore the earring as form of self-expression which can also be considered symbolic

speech.

Another case that could be used in Bill Fosters’ defense is Tinker v Des Moines School

District. In this case John and Mary Beth Tinker along with a few other students wore black

armbands to school as a way to protest the U.S. involvement and mourn the death that had been

caused by the war. When school officials became aware of what was going on they created a “no

armband” policy which John and May Beth decided not to abide by. When they continued to

wear the armbands they were suspended for violating the school policy. As a result of their

suspension, they sued stating that it was a violation of their First Amendment rights. In the text

book Legal Rights of Teachers and Students by Cambron-McCabe, McCarthy and Eckes it

states, “Concluding that students were punished for expression that was not accompanied by any

disorder or disturbance is not enough to overcome the right of freedom of expression” (p. 98).

With this case it was reasoned that school officials cannot censor student speech/expression if it

does not cause a substantial or material disturbance in the school environment or interfere with

the rights of others. Because John and Mary Beth’s actions did not cause any disturbances it was

seen that prohibiting them for wearing the armbands was indeed a violation of the First

Amendment rights. Similar to the Tinker’s actions, Bill Fosters’ act of wearing the earring did

not cause any form of disturbance in the school or interfere with the rights of others.
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Moving over to the defendants’ side, BH and KM v Easton Area School District is a case

that would support the defendants’ side and justify the school prohibiting Bill Foster from

wearing the earring. In this case BH and KM were two middle school girls that wore “I ♥

Boobies!” bracelets to school. The intention of those bracelets was to promote breast cancer

awareness among young women and the bracelets seemed to be a hit. BH and KM both wore

their bracelets on a daily basis; they wore them as a mean to commemorate friends and relatives

who had suffered from breast cancer and to spread awareness among their friends. As the

bracelets were starting to be seen more and more around the school, teachers began to grow

concerned on whether they would become a nuisance. Some teachers thought that the bracelets

could be found offensive and lead to offensive comments. A couple weeks later teachers asked if

they should take action and require students to remove the bracelets and the assistant principal

told teachers to tell ask this of students who had bracelets with the word “boobie” written on

them. Although there was no disturbance reported from the wearing of the bracelets, the school

decided to ban them as Breast Cancer Awareness Month was approaching. When it was

announced that the bracelets were banned from being worn at school, BH and KM continued to

wear them. While in lunch, BH and KM were told by the school security to remove their

bracelets and they refused to do so. They were then escorted to the principal’s office where they

were both given a day and a half of in-school suspension and forbidden from going to their

schools’ Winter Ball. Consequently, the girls sued the school district through their mothers as

they felt this was a violation of their freedom of speech and expression. The Court found that the

action of the school was in fact a violation of both BH and KM’s rights. By BH and KM wearing

the bracelets they did not cause any disturbance at school and were wearing the bracelets as a

means of symbolic speech and trying to promote the awareness of a serious health issue such as
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breast cancer which is protected under the First Amendment. Although Bill Fosters’ act in

wearing the earring did not cause any disturbance in school either, it could be argued whether or

not it is considered symbolic speech. In order for the conduct of expression to be protected it

must communicate something that people would be able to understand. In other words, that

message is one that is clearly understood. Not everyone that sees Bill Foster with the earring

could easily tell that it is merely a form of self-expression or that he was using it because he

thought I was attractive to young women. There could be people that associate the use of

earrings by males with gangs and see that Bill wearing the earring is to signify that he is in a

gang or to identify himself with his gang members.

Another case that would support the school prohibiting Bill Foster from wearing the

earring is Olesen v Board of Education School District No. 228. This case was remarkably

similar to the case of Bill Foster, if not identical. This was a case about a boy named Darryl

Olesen Jr. who was a senior at Bremen High School in Midlothian, Illinois. The defendants’ in

this case, Board of Education School District No. 228, is responsible for the operation of four

high schools including Bremen. Darryl, like Bill, wishes to wear an earring as a form to express

his individuality and because he also thinks that it is attractive to young women. Of the several

times he had worn the earring to school he was suspended all of those times. The Board forbid

all gang activities at the schools which included the wearing of gang symbols and jewelry.

Although there were no specifics about earrings being banned by the Board, each school is

allowed to adjust the gang policy in different ways. Because the administration at Bremen came

to the conclusion that many male students wore earrings as a way to signify their gang affiliation

they made sure to specify the ban of male students wearing earrings inside their student dress

code section of their school’s handbook.

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He claimed that it was unconstitutional for the school administration to prohibit him from

wearing the earring as it was a violation of his First Amendment rights and his right to equal

protection under the Fourteenth Amendment since the ban did not include girls being forbidden

to wear earrings. Darryl requested for an injunction and denied. He failed to meet the criteria

required to be granted an injunction, thus his request was denied. Although Olesen claimed that

the policy was in violation of his First Amendment rights that was not seen to be true because he

had to demonstrate that he intended to convey a particular message through his expression and

that is would be a message understood by those who viewed it. Darryl’s only message was

individuality and to send that message he was willing to violate the school policy which

specifically banned male students from wearing earrings, a policy that was created to protect the

students of Bremen from any dangerous gang affiliation going on in the school. Darryl also

claimed that the policy violated his right to equality under the Fourteenth Amendment since the

policy did not prohibit girls from wearing earrings, but the Board members recognized that it was

male students who for the most part wore earrings as a way to signify gang membership, whereas

female students had other gang symbols that were also prohibited by the school policy. Bill

Fosters’ case is extremely similar and like Darryl’s message of “individuality” was not seen to be

protected under the First Amendment neither should Bill Fosters’ message of “self-expression”

which could be seen to considered the same as individuality.

In conclusion, from reviewing the several court cases to support both the possible

defendant and plaintiff I would say that the school has the right to prohibit Bill Foster from

wearing the earring to school and is not an act that violates his First Amendment rights or his

rights to equal protection under the Fourteenth Amendment. In order for a message or form of

expression to be protected it must be a message intended to communicate something whether it

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be, religion, political views or views on controversial issues. It must also be a message that is

likely to be understood by most that are going to view it; in the situation with Bill Foster, that is

not the case. It is not guaranteed that everyone who sees Bill Foster with the earring will assume

that it is merely a form of “self-expression” and could think that it is portraying a different

message which is gang affiliation that could put Bill Foster and his classmates in danger. The

school policy was made ultimately to protect the students from what could be a serious potential

danger to the school environment affecting everyone in it. Students’ rights are recognized and

protected so long as it strikes a balance between those rights and the rights of other which was

not the case in Bill Fosters’ situation.

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References

Cambron-McCabe, N. H., McCarthy, M. M., & Eckes, S. E., (2014). Legal Rights of Teachers

and Students. New Jersey: Pearson.