Full Appeals Court Upholds ‘Boobies’ Bracelets in Schools

By Mark Walsh — August 05, 2013 4 min read
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In a major decision on the free-speech rights of students, a full federal appeals court ruled Monday that schools may not prohibit popular “I ♥ Boobies” breast-cancer awareness bracelets because they are not plainly lewd and they comment on a social issue without disrupting school.

The U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, ruled 9-5 to uphold an injunction blocking the Easton Area School District in Pennsylvania from barring the bracelets, which are sponsored by the Keep a Breast Foundation in Carlsbad, Calif.

The 107-page decision includes a lengthy analysis of the breast-cancer bracelets under U.S. Supreme Court precedents on student-speech rights, including Bethel School District v. Fraser, a 1986 decision in which the justices upheld a school district’s punishment of a student who delivered a lewd speech before a student assembly.

Writing for the 3rd Circuit court majority today, Judge D. Brooks Smith said, “Because the ‘I ♥ boobies! (KEEP A BREAST)’ bracelets are not plainly lewd and express support for a national breast-cancer-awareness campaign—unquestionably an important social issue—they may not be categorically restricted under Fraser.”

Administrators at Easton Area Middle School believed the reference to “boobies” on the breast-cancer bracelets 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.

In April 2011, a federal district judge issued a preliminary injunction blocking the Pennsylvania district from enforcing its ban on the bracelets. The district judge held that the bracelets could not be considered lewd or vulgar under Fraser. A three-judge 3rd Circuit panel heard arguments in the case, but before it could rule the full appeals court stepped in to take up the case.

The court’s Aug. 5 decision in B.H. v. Easton Area School District even claims to strengthen the hand of school administrators in some respects by extending Fraser to cover “ambiguously lewd” speech that “a reasonable observer could interpret as lewd, vulgar, profane, or offensive.”

But “a school’s leeway to categorically restrict ambiguously lewd speech, however, ends when that speech could also plausibly be interpreted as expressing a view on a political or social issue,” Judge Smith said. That conclusion was reinforced by a concurring opinion issued by Justice Samuel A. Alito Jr., joined by Justice Anthony M. Kennedy, in the Supreme Court’s 2007 decision in Morse v. Frederick.

In Morse, the court upheld the discipline of a student who had displayed a “Bong Hits for Jesus” banner at a school event. Justice Alito said he joined the majority opinion on the understanding that “it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue.”

The 3rd Circuit court said the Alito concurrence was a binding part of Morse and means that speech plausibly interpreted as political or social commentary is protected from categorical regulation in schools.

The majority said that under its framework, the school district’s ban on the “I ♥ boobies!” bracelets is “an open-and-shut case.”

“The slogan bears no resemblance to Fraser‘s ‘pervasive sexual innuendo’ that was ‘plainly offensive to both teachers and students,’” Judge Smith said. School administrators did not conclude the bracelets were vulgar until the two students had worn them to school for more than two months, he said.

The court majority said several hypotheticals offered by the school district could likely be restricted under its framework, including a bracelet that might read “I ♥ tits!” or a student’s drawing of stick figures engaged in sex, because those would involve patently offensive references to sexual organs and thus, under Supreme Court precedents, are obscene to minors.

The majority said it was aware that school administrators have a tough job navigating modern challenges.

“The school district in this case was not unreasonably concerned that permitting ‘I ♥ boobies! (KEEP A BREAST)’ bracelets in this case might require it to permit other messages that were sexually oriented in nature,” Judge Smith said. “But schools cannot avoid teaching our citizens-in-training how to appropriately navigate the marketplace of ideas. Just because letting in one idea might invite even more difficult judgment calls about other ideas cannot justify suppressing speech of genuine social value.”

Writing for the dissenters, Judge Thomas M. Hardiman said the court should have deferred to the judgment of school administrators.

“In this close case, the ‘I ♥ boobies! (KEEP A BREAST)’ bracelets would seem to fall into a gray area between speech that is plainly lewd and merely indecorous,” Hardiman said. “Because I think it objectively reasonable to interpret the bracelets, in the middle school context, as inappropriate sexual innuendo and double entendre, I would reverse the judgment of the district court and vacate the preliminary injunction.”

In a separate dissent, also joined by all the dissenters, Judge Joseph A. Greenaway Jr. , warned that similar bracelets for cancer-awareness campaigns referencing “penises” or “vaginas” may be immune from regulation by schools.

“A school district faced with the same dilemma in the coming weeks, months, or years is given no greater guidance regarding its ability to determine whether a particular message may be proscribed than before the majority opinion issued,” Judge Greenaway said.

Photo: Brianna Hawk, left, and Kayla Martinez display their “I (heart) Boobies!” bracelets for photographers outside the U.S. Courthouse in Philadelphia earlier this year. (Matt Rourke/AP-File)

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