Supreme Court Declines District’s Appeal in ‘Boobies’ Student-Speech Case

By Mark Walsh — March 10, 2014 3 min read
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The U.S. Supreme Court on Monday declined to take up a Pennsylvania school district’s appeal of a lower-court ruling that upheld the right of students to wear “I ♥ Boobies” breast-cancer-awareness bracelets.

The Easton Area School District had been joined by school groups in urging the justices to review a case that they said had serious implications for discipline of what the schools view as vulgar and inappropriate student speech.

But lawyers for the middle school students who were suspended for wearing the “I ♥ Boobies (KEEP A BREAST)” bracelets told the justices in a brief that the case would make a poor vehicle for a major decision on student speech viewed by administrators as lewd.

The justices declined without comment on March 10 to hear the district’s appeal in Easton Area School District v. B.H. (Case No. 13-672). The court’s action is not a decision on the merits, but it means the justices will not be delving back into thorny issues of student free speech in a case that attracted nationwide attention.

Brianna Hawk and Kayla Martinez, who are now in high school, wore the wristbands for two months during the fall of 2010 before administrators at Easton Area Middle School raised concerns. The bracelets, sponsored by the Keep a Breast Foundation of Carlsbad, Calif., are designed to promote a breast-cancer-awareness campaign in language that resonates with young people.

Administrators at the middle school reported that some boys reacted immaturely to the bracelets, chanting “I love boobies” and “boobies, boobies.” They barred the bracelets as containing a sexual and lewd message inappropriate for middle school students.

The girls and their parents sued under the First Amendment, with the aid of the American Civil Liberties Union of Pennsylvania. The full U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, ruled 9-5 last August to uphold a lower-court injunction barring the district from enforcing the ban on the bracelets.

“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,” the 3rd Circuit majority said.

School administrators would have a stronger hand in regulating student speech that more directly referred to sex or sexual organs, the appeals court said.

In its Supreme Court appeal, the school district argued that the 3rd Circuit ruling undermines the high court’s 1986 decision in Bethel School District v. Fraser, which upheld a school’s discipline of a high school student’s lewd speech before a student assembly.

“The 3rd Circuit’s decision undermines Fraser‘s basic premise that vulgar, lewd, profane, or obscene expression can be constitutionally prohibited in the public school environment, even if the same expression by adults might be protected by the First Amendment,” said the district’s appeal.

The National School Boards Association and its Pennsylvania affiliate, along with National Association of Secondary School Principals and AASA, the School Superintendents Association, had filed a friend-of-the-court brief on the side of the Easton district.

The brief voiced concerns that under the 3rd Circuit court’s ruling, administrators would be powerless to regulate “ambiguously lewd, plausibly political/social messaging” on subjects such as testicular-cancer awareness.

The ACLU, in its brief for the students, said the school district and the school groups present “a prophecy of doom” that harkens back to unfounded fears that the Supreme Court’s landmark ruling in favor of student speech, in Tinker v. Des Moines Independent Community School District, would lead to students’ constantly defiance of their teachers.

“Although the school district and its amici express concern that cause-related apparel will lead to more students ‘testing’ school rules on lewdness, in reality students have always ‘tested’ these limits and the schools have proven equal to that challenge for more than 40 years,” the students’ brief says.

Photo: Brianna Hawk, left, and Kayla Martinez speak to reporters outside the U.S. Courthouse in Philadelphia in February, 2013, when their “I ♥ Boobies” bracelets case was being heard by an appeals court.—Matt Rourke/AP-File

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