A federal district judge in Indiana has ruled that school administrators may prohibit “I ♥ Boobies” breast-cancer awareness bracelets as lewd or vulgar student speech.
Judge Joseph S. Van Bokkelen of Hammond, Ind., considered and rejected the reasoning of the full federal appeals court in Philadelphia, which ruled earlier this month that the bracelets could not be barred because they comment on a social issue and are not “plainly lewd.”
“Clearly, the breast cancer awareness message does not eliminate the vulgar meaning behind ‘I ♥ Boobies’,” Van Bokkelen said in his Aug. 20 opinion in J.A. v. Fort Wayne Community Schools.
The Fort Wayne school district barred the bracelets, which are produced by the Keep A Breast Foundation of Carlsbad, Calif., after a male high school student in 2010 was wearing one when he harassed a female student by repeating the phrase “I love boobies” around her. District officials, which had also confiscated a bracelet that said, “Save the boobs,” concluded that such messages were offensive to women and inappropriate for school regardless of their breast cancer awareness theme.
The ban was challenged on First Amendment grounds by a female student identified as K.A., who is entering her senior year at North Side High School in Fort Wayne.
The bracelets have caused controversy in several schools around the country. In an Aug. 5 decision in B.H. v. Easton Area School District, the full U.S. Court of Appeals for the 3rd Circuit held that the bracelets could not be categorically barred as lewd under U.S. Supreme Court precedents on student speech.
The 3rd Circuit court interpreted the U.S. Supreme Court’s 2007 ruling in Morse v. Frederick, which upheld school administrators who disciplined a student for his “Bong Hits 4 Jesus” banner, as being limited by a concurrence by Justice Samuel A. Alito Jr. Justice Alito suggested that schools could not categorically limit any student speech that could be interpreted as political or social commentary.
In his opinion in the Fort Wayne case, Van Bokkelen declined to give Alito’s concurrence the same weight that the 3rd Circuit did. In fact, he said, the U.S. Court of Appeals for the 7th Circuit in Chicago, which covers Indiana, has already rejected the idea that Alito’s concurrence formed a controlling opinion in Morse.
“Therefore, the bracelet’s commentary on social or political issues does not provide additional protection under the First Amendment,” Van Bokkelen said. “This court will ask solely whether the school made an objectively reasonable decision in determining that the bracelet was lewd, vulgar, obscene, or plainly offensive.”
The judge concluded that the word “boobies” is often vulgar by itself, and the “I ♥ Boobies” slogan has been interpreted sexually by middle school boys, among others.
The judge said high school was a place where the youngest students were not very far removed from the maturity level of middle schoolers, and the evidence in this case showed that boys at North Side High showed a low maturity level.
“The school could therefore reasonably conclude that the bracelet contained sexual innuendo that was vulgar within the context of North Side High School,” the judge said.
He noted that in the 3rd Circuit case, administrators in the Easton, Pa., school district had waited several months to bar the bracelets and did so even though there appear to be little or no disruption of school caused by the slogan.
In Fort Wayne, by contrast, administrators acted swiftly after the male student had repeated the slogan in an offensive manner, Van Bokkelen said.
If the “I ♥ Boobies” bracelets were allowed, it would be hard to establish a principle that would allow administrators to bar the “Save the Boobs” bracelet or an explicit one offered aimed at testicular cancer awareness, he said.
“School officials, who know the age, maturity, and other characteristics of their students better than federal judges, are in a better position to decide whether to allow these products into their schools,” Van Bokkelen said. “Issuing an injunction would take away the deference courts owe to schools and make their job that much harder.”
A version of this news article first appeared in The School Law Blog.