A full federal appeals court on Wednesday heard arguments about whether school districts may bar students from wearing the popular “I ♥ Boobies” wristbands promoting breast-cancer awareness.
The U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, is reviewing a 2011 decision by a federal district judge to block the Easton Area School District in Pennsylvania from enforcing a ban on the wristbands.
“The district court’s treatment of the constitutional issues raised threatens to open the school gates to a flood of cause-based marketing—energized by clever sexual double-entendres—that pushes the limits of propriety in public schools and imposes a substantial risk of disruption and distraction,” John E. Freund III told the 3rd Circuit on Feb. 20. [Note: I listened to the audio recording of the arguments, which are available at this link.]
Administrators at Easton Area Middle School believed the reference to “boobies” was vulgar and inappropriate for middle school students.
Two students who were suspended for defying the prohibition challenged it in court through their parents as a violation of their First Amendment free-speech rights. The students are Brianna Hawk and Kayla Martinez, who are now in high school.
Their lawyer, Mary Catherine Roper of the American Civil Liberties Union of Pennsylvania, told the 3rd Circuit on Wednesday that “a school cannot censor student speech unless it can show its action was caused by something other than a mere desire to avoid discomfort or unpleasantness. In most instances, that means a showing of substantial material disruption or reasonable forecast of substantial material disruption.”
The case prompted a provocative hour-long argument before the 13 members of the appeals court, with the judges debating which U.S. Supreme Court decision on student speech the “boobies” case should be analyzed under, and whether the ‘boobies’ slogan was inappropriate in schools.
Some judges sounded as if they accepted that the “I ♥ Boobies” wristbands, which are sponsored by the the nonprofit Keep A Breast Foundation of Carlsbad, Calif., were at most ambiguous double-entendres that were meant to promote discussions of breast cancer in a way that would capture the attention of young people.
“I don’t see anything offensive about them,” said Judge Delores K. Sloviter, noting that the 3rd Circuit court had lost one of its members to breast cancer. “Breast cancer is offensive.”
Other members of the court were more sympathetic to the school district, citing the fact that noted that other nonprofits have seized on suggestive phrases to promote awareness of diseases such as testicular cancer.
Both the Lehigh Valley Express-Times and the Allentown Morning Call provided firsthand reports of the arguments.
A version of this news article first appeared in The School Law Blog.