Running head: ARTIFACT #3 1

Artifact #3; The Case of Bill Foster

Courtney Lichtenwalner
College of Southern Nevada
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Artifact #2; The Case of Bill Foster

Most teenagers go through a phase where they try and find themselves. If this means

that they choose to dress a certain way, it could be considered acting out or just trying to make

some sort of statement. However, in the case of Bill Foster, there were limits as to how he should

have chosen to express himself while in school and he chose to surpass those limits. Bill Fosters

high school is located in the northeastern United States. Unfortunately, the school has had some

issues with gang activity. Therefore, to avoid any unnecessary issues, the school chose to create a

policy that would prohibit the wearing of anything that could be considered gang related. These

prohibited items include, jewelry, emblems, earrings, and athletic caps. While Foster is not

known to be involved in any gang activity, he chose to wear an earring to school as an attempt at

impressing some females also attending the school. Foster ended up being suspended for making

this decision and was therefore, suspended. Foster has since chosen to file suit stating that

wearing an earring is violating his First Amendment rights to free expression.

In this case, the First and Fourteenth Amendments, as well as due process can be cited as

sources for a fair outcome. The First Amendment gives students the right to express

nondisruptive ideological views at school, but restrictions can be placed on their expression that

represents the school. (McCabe, McCarthy, & Eckes. 2014. p. 96). Also according to McCabe,

McCarthy, and Eckes (2014), 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. This applies to the case because the First Amendment does give students the right to

express themselves and their views in a school setting, the administration is allowed to put rules

regarding expression in place when it comes to possibly causing a problem within the school. In

addition, Fosters desire to impress the girls in his school is what he claims motivated him to

wear the controversial earring, and chose to communicate it as such to his intended audience.
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The next amendment that can be sourced in this case is the Fourteenth Amendment, which

restricts governmental interference with citizens free expression rights, which are perhaps the

most preciously guarded individual liberties. The government, including public school boards,

must have a compelling justification to curtail citizens expression, even of unpopular

viewpoints. (McCabe, McCarthy, & Eckes. 2014. p. 96). This applies to this case because the

school would need distinct evidence as to why this policy to limit this form of expression would

exist. In this particular case, Foster was suspended for his choice of expression, but is entitled to

procedural due process as stated by the Supreme Court in the 1975 case of Goss v. Lopez. In

Goss, the Court held that minimum due process must be provided before a student is

suspended for even a brief period of time. (McCabe, McCarthy, & Eckes. 2014. p. 176). Thus,

Foster would be awarded the right to an oral or written notice of why he is being suspended, a

chance to state why he is not guilty of committing the suspending offense, and an explanation of

the evidence from the school in support of the suspension.

Foster is choosing to file suit against the high school because he believes he was being

targeted as a gang member for his choice of expression, even though he claims to have no gang

affiliation. He cites the First Amendment and claims that he was just trying to impress some of

the female student body. Foster also states that he made it through the entire school day before a

teacher even noticed the small diamond stud earring and chose to send him to the office. Upon

being seen by the Dean of the school, he was notified of his suspension. Foster admits that he

was awarded his right to procedural due process during this time, with a written warning and

evidence of why he was suspended even if he fully disagrees with the reasoning. Foster would

like to address the case of Tinker v. Des Moines Independent School District where students were

suspended for a silent protest; however, there was no disruption within the school. He states that

while his intention was to receive attention from some girls in the school, no one even noticed
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the earring until that teacher at the end of the day. Therefore, the earring did not cause a

disruption, as is similar in the Tinker case and he should not have been suspended from school.
The second case that Foster would like to use in his defense is Chalifoux v. New Caney

Independent School District. In this particular case, certain students chose to wear Rosaries

outside of their clothing as a form of expression. These students were told that due to possibly

being gang related, they would be allowed to wear them inside of their clothing, but not visibly

on the outside. This was a verbal warning and the rule was not put into the school handbook,

therefore the students chose to continue wearing the rosaries as they pleased and the students

were suspended. When the case went to Court, the Court ruled in favor of the students citing

their First Amendment right to free expression. Foster claims that his case and the Chalifoux case

are one in the same, however, he does state that his student handbook did say earrings were

against school policy.

The high schools attorneys are choosing to cite an interesting case in which the students

actually won, however, the case was concerning a different issue. They are choosing to recognize

the case of BH and KM v. Easton Area School District in which the Court found in favor of the

students. The attorneys address that while the students did win this case, the ruling included

information pertinent to the Foster case. The BH and KM case was in regards to bracelets

supporting breast cancer that included the words, I Love Boobies (Keep a Breast). (McCabe,

McCarthy, & Eckes. 2014. p. 114). The principals at that particular school thought that the

bracelets could be seen as lewd and vulgar, however, because breast cancer is a political/social

issue, the Court ruled in favor of the students. However, in Fosters case, his choosing to wear an

earring did not involve a political or social issue and therefore, he needs to follow the guidelines

set forth by his school.

The second case that the high schools attorneys are using in defense of their case is

Bethel School District No. 403 v. Fraser. The reason they are choosing this case is because the
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Supreme Court ruled that schools have the authority to, censor lewd, vulgar, and indecent

student expression. (McCabe, McCarthy, & Eckes. 2014. p. 98). Earrings may not seem lewd or

vulgar to most, because of the nature of the gang activity within the school, they are considered

indecent. Foster, as well as the rest of the student body were informed of these rules at the

beginning of the school year and he chose to violate these rules, and therefore was suspended.

The attorneys also point to the Fourteenth Amendment before closing their case. While free

expression is incredibly important, as are all citizens rights, schools need to prove their case that

much more to show that they are not violating these rights. At this point, the attorneys show how

gang activity has actually slowed within the school after the administration chose to implement

the new dress code policy proving that the school made the right decision in creating this rule

prohibiting the earrings and other jewelry.

In conclusion, Bill Foster is found in violation of the schools rules and his suspension

should be upheld. The school followed procedure and Foster was awarded his procedural due

process rights when he was called into the Deans office. Foster was aware of the policy that the

school had in place and citing the case of Chalifoux v. New Caney Independent School District,

where the students won their case, it was in the handbook that Foster was not allowed to wear

earrings.

References
McCabe,N.,McCarthy,M.,&Eckes,S.(2014).StudentExpressionAssociation,and
Appearance.InLegalRightsofTeachersandStudents(2nded.,p.96).Boston:Pearson
Education.
McCabe,N.,McCarthy,M.,&Eckes,S.(2014).StudentExpressionAssociation,and
Appearance.InLegalRightsofTeachersandStudents(2nded.,p.96).Boston:Pearson
Education.
McCabe,N.,McCarthy,M.,&Eckes,S.(2014).Gossv.Lopez.InLegalRightsofTeachersand
Students(2nded.,p.98).Boston:PearsonEducation.
McCabe,N.,McCarthy,M.,&Eckes,S.(2014).StudentExpressionAssociation,and
Appearance.InLegalRightsofTeachersandStudents(2nded.,p.114).Boston:Pearson
Education.
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McCabe,N.,McCarthy,M.,&Eckes,S.(2014).StudentDiscipline.InLegalRightsofTeachers
andStudents(2nded.,p.176).Boston:PearsonEducation.