Education Groups Urge High Court to Take Up ‘Boobies’ Speech Case

By Mark Walsh — January 07, 2014 3 min read
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Four major education groups are urging the U.S. Supreme Court to overturn a lower court ruling that upheld the right of students to wear “I ♥ Boobies” breast-cancer awareness bracelets.

The National School Boards Association and its Pennsylvania affiliate, along with National Association of Secondary School Principals and AASA, the School Superintendents’ Association, filed a friend-of-the-court brief on the side of the Easton Area School District in Pennsylvania in a major battle over student speech rights.

“The 3rd Circuit ruling, we think, has serious implications for school officials, parents, and students, and we’re urging the Supreme Court to review the decision, and reaffirm its recognition that school officials are the arbiters of appropriate student speech in schools,” Thomas J. Gentzel, the executive director of the NSBA, said in a conference call with reporters Monday.

The Pennsylvania district filed its appeal last month of a decision by the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, that the “I ♥ Boobies” bracelets worn by middle school students were not plainly lewd and were a form of commentary on a social issue that did not disrupt school.

School administrators view the breast-cancer bracelets as 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.

The full 3rd Circuit court ruled 9-5 last August to uphold an injunction blocking the school district from barring the bracelets, which are sponsored by the Keep a Breast Foundation of Carlsbad, Calif.

The majority said that a school’s leeway to categorically restrict ambiguously lewd speech ends when that speech could also plausibly be interpreted as expressing a view on a political or social issue, and the “I ♥ Boobies” bracelets were clearly a form of social commentary.

In their friend-of-the-court brief in Easton Area School District v. B.H. (Case No. 13-672), the education groups contend that the 3rd Circuit court misread a key 1986 Supreme Court decision, Bethel School District v. Fraser, that gave school administrators a freer hand to discipline lewd student speech.

“If left undisturbed, this new standard for analyzing regulation of student speech will leave school officials powerless when students push the envelope by including a sliver of political speech in an otherwise inappropriate image or phrase that school officials have determined has no place in that learning environment,” the brief says.

During the conference call, Francisco M. Negrón Jr., the general counsel of the NSBA, said that school officials are seeing many messages that purposely contain double entendres.

“In other words, the messaging is intended to have double-entendre, to have double meaning, often of a sexual nature. That’s part of the messaging’s attractiveness,” Negrón said. “I don’t want to go on record as uttering some of the double entrendres,” he said, instead referring reporters to the brief for numerous examples.

“Breast cancer awareness is the tip of the iceberg when it comes to ambiguously lewd, plausibly political/social messaging,” the brief says, referring to some catchphrases that are designed to promote causes such as testicular-cancer awareness, along with others that seem aimed squarely at juvenile minds.

“These messages may be protected speech in the mall, but are often inappropriate in a respectful, civil school environment,” the brief says.

The students in the Easton case are being represented by the American Civil Liberties Union. They have received an extension to file their brief in response to the school district’s appeal (and the education groups’ brief). That response is due at the court on Feb. 5.

A version of this news article first appeared in The School Law Blog.