Running head: Portfolio #3 The Case of Bill Foster 1

Portfolio #3

The Case of Bill Foster

Cassandra Rasmussen

College of Southern Nevada

Sun. April 28, 2019

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Rules set by school administrators are supposed to be in place to protect students.

However, there is always the question of what constitutes reasonable protections v. being a

violation of students right. In the case of Bill Foster, his school had banned the wearing of gang

symbols. These symbols were set to include, jewelry, emblems, earrings, and athletic caps. When

Bill Foster subsequently wore an earring to school he was suspended, and he decided to file suit.

The court must know determine if Foster’s freedom of expression was violated or if Foster

simply violated a school policy that was rightfully implemented by the school.

The first case presented in favor of Bill Foster is Tinker v. Des Moines Independent

School District (1969). In this case, three students were suspended from school for wearing black

armbands in protest of the Vietnam War. The school discovered this plan and implemented a ban

on wearing armbands just 2 days before this was to take place. The three students wore their

armbands, and when they refused to remove the armbands, they were suspended. The school

district tried to make the case that these students caused a disruption of the educational process.

However, the court sided with the students, stating that “symbolic speech” is protected by the

First and Fourteenth Amendments, so long as it does not disrupt the normal school functions.

This relates back to Bill Foster because his earring is a freedom of expression and would not

disrupt the normal function of the school.

The second case in favor of Bill Foster is Chalifoux v. New Caney Independent School

District (1997). In this case, two students (David Chalifoux and Jerry Robertson) claimed that

their First Amendment rights were violated when the New Caney Independent School District

(NCISD) prohibited them from wearing rosaries outside their clothing, stating a ban on “gang-

related apparel.” The NCISD police officers defended their actions, stating they heard about
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gang members using rosaries to indicate that they were part of a gang. And while the officers

stated that they knew Chalifoux and Robertson were not part of a gang, and that there was only

one instance of someone from a gang coming on campus, they maintained that their request was

a preventative safety measure. The court sided with the students, stating the wearing of the

rosary by two individuals who were already known to not be associated with any gangs, was a

form of religious expression, and prohibiting the wearing of a rosary was a violation of the First

Amendment. This relates back to Bill Foster’s case because, while he was wearing an earring,

and that was considered to be a gang-related symbol, Bill Foster was not in a gang, and he was

just exercising his First Amendment rights.

The first case presented in favor of the school district, in regard to the First Amendment

is Boroff v. Van Wert City Board of Education (2000). In that case, a student (Nicholas Boroff)

was told that his shirt (which depicted Marylin Manson and alternative versions of Jesus) was

offensive, and that he needed to turn the shirt inside-out, change his shit, or go home. Boroff

elected to g home. He then sued the school for violation of his First Amendment rights.

However, the school already had a dress code policy in place that stated that “clothing with

offensive illustrations, drug, alcohol, or tobacco slogans are not acceptable” and that the shirt in

question violated that policy. Boroff took his case to the district court, who affirmed the school’s

stance that the images depicted were offensive. When the case was taken to the Supreme Court,

they sided with the district court. The reason this relates to Foster’s case is that there was a

school dress code policy in place. In both cases, the individual involved violated the dress code,

whether or not that code was overly harsh or seen as no big deal.

The second case presented in favor of the school district is Morse v. Frederick (2007). In

this particular case, student Joseph Frederick was at a school-supervised activity and held up a
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banner saying “Bong Hits 4 Jesus” while the Olympic Torch Relay ran by. His principal,

Deborah Morse, told him to put the banner away, as it could be interpreted as promoting illegal

drug use. When Frederick refused to comply, Morse confiscated the banner. Frederick was then

suspended for 10 days, citing the school’s policy on not advocating illicit or illegal drug use.

Frederick claimed that the school infringed upon his First Amendment rights. The Supreme

Court ruled in favor of the principal, saying that Frederick violated the school’s policy, and the

First Amendment protections only specifically apply to politically motivated speech that does not

“substantially disrupt the educational process.” As this banner was not political and Frederick’s

reasons were not politically motivated (as stated by Frederick), the court agreed that the banner

was promoting illegal drug use. This related back to Foster’s case, because (just as with

Frederick) the guidelines are laid out in the school’s policy, and the policy was violated. And

therefore, the First Amendment defense does not apply.

My decision in this case is in favor of the school district. While Bill Foster was not

related to a gang, he was wearing an earring, which is on the list of prohibited items/symbols

used to represent gangs. He was not wearing an earring for a religious purpose, so there was no

religious freedom violation. Nor was he wearing the earring for political reasons. So, the

politically motivated freedom of expression argument does not fit either. In both Boroff v. Van

Wert City Board of Education (2000) and Morse v. Frederick (2007), the student in question

violated a policy previously put forth by the administration or school district. And neither of

those cases cited some form of religious or political expression. This is the same with Bill Foster.

He violated a policy previously set forth by the administration and he is not claiming religious or

political expression. Therefore, the court would be correct in siding with the school board.
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References

Chalifoux v. New Caney Independent School Dist., 976 F. Supp. 659 (S.D. Tex. 1997). (n.d.).

Retrieved April 28, 2019, from https://law.justia.com/cases/federal/district-

courts/FSupp/976/659/1582548/

Facts and Case Summary - Morse v. Frederick. (n.d.). Retrieved April 28, 2019, from

https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-

morse-v-frederick

FindLaw's United States Sixth Circuit case and opinions. (n.d.). Retrieved April 28, 2019, from

https://caselaw.findlaw.com/us-6th-circuit/1210620.html

Tinker v. Des Moines Independent Community School Dist. (n.d.). Retrieved April 28, 2019, from

https://www.law.cornell.edu/supremecourt/text/393/503

Underwood, J., & Webb, L. D. (2006). School law for teachers: Concepts and applications. Upper

Saddle River, NJ: Pearson/Merrill Prentice Hall.