In February 2012 we discussed the turmoil that had erupted at schools across the country as students donned breast cancer awareness bracelets with the slogan “I (Heart) Boobies”. The bracelets were quickly banned after school officials claimed that they caused a substantial disruption to classroom activity. Students argued that the ban amounted to a violation of their First Amendment rights to freedom of speech.
In a 2011 case the United States District Court for the Eastern District of Pennsylvania held that the bracelets were merely a means of raising breast cancer awareness among the younger generations and cannot reasonably be considered lewd or vulgar. In making its determination, the Court cited to Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986), a landmark case permitting restrictions on student speech when it is deemed lewd, vulgar or profane. Additionally, the Court found that the bracelet’s message did not create a material or substantial disruption under the Tinker standard, set forth in the seminal case of Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). In Tinker the Supreme Court held that a school district unconstitutionally infringed on the First Amendment rights of students who were suspended for wearing black armbands in silent protest of U.S. involvement in Vietnam.
Recently the U.S. Court of Appeals for the 3rd Circuit heard oral argument reviewing the decision of the District Court. On Appeal, the Easton Area School District claimed that the slogan inscribed on the bracelet is inappropriate for middle school students and the ban was meant to encourage decorum and civility in the classroom. In particular, those arguing to uphold the ban claimed that middle school boys were simply too immature to handle such a message.
A panel of three judges heard the appeal in April but ultimately a rehearing was ordered before the entire Court. The Court’s decision could have significant implications as to how school officials should interpret student speech when language utilized can be interpreted in a multitude of ways and where the message is tied to political or social issues.
If your institution has questions or concerns about this topic and you would like further information, please email Cynthia Augello at firstname.lastname@example.org or call her at 516-357-3753.
A special thanks to Cynthia Thomas a law clerk at Cullen and Dykman LLP, for help with this post.