Pa. district violated First Amendment by banning ‘I ♥ Boobies!’ bracelets

On Board Online • September 2, 2013

By Kimberly A. Fanniff
Senior Staff Attorney

In an effort to draw attention to their mission, various charitable organizations across the nation have reached out to young people by appealing to their sense of humor with campaigns that employ slogans containing plays on words or double entendres. The Keep A Breast Foundation has done so by selling rubber bracelets emblazoned with messages such as “I ♥ Boobies! (KEEP A BREAST).” Recently, the Third Circuit U.S. Court of Appeals ruled that a school district’s ban of these bracelets violated the First Amendment in B.H. ex rel Hawk v. Easton Area School District.

Two middle school students in Easton, Pa. wore the aforementioned bracelets to school for two months. After the bracelets attracted the attention of teachers and administrators, the school banned them based on concerns that the bracelets would cause middle school students to make offensive comments and engage in inappropriate touching. Despite the ban, the two female plaintiffs wore the bracelets on the school’s breast cancer awareness day and were disciplined after they refused to remove the bracelets. The plaintiffs subsequently filed a lawsuit claiming the discipline violated their right to free speech and seeking a preliminary injunction barring enforcement of the bracelet ban.

Students’ First Amendment rights in school are not the same as the free expression rights of adults in other settings . The U.S. Supreme Court has established guidance for school districts regarding student free speech rights in a series of decisions that began in 1969 with the seminal case of Tinker v. Des Moines Independent School District. Tinker established that school districts can regulate student speech if the speech represents a substantial disruption to the school environment or invades the rights of others.

In 1986, the Supreme Court ruled in Bethel School District v. Fraser that a school district has the ability to restrict vulgar, lewd, profane or plainly offensive speech even if there is no risk of substantial disruption. In the B.H. case, the Third Circuit examined the extent of a school district’s authority under Fraser.

The full Third Circuit sat en banc for this case, and a majority of nine justices determined that a school district does not have unfettered authority to restrict any speech it finds lewd, vulgar or offensive. The court set out a three-part analysis:

• Plainly lewd speech may be categorically restricted.
• Speech that is not plainly lewd but may be interpreted as lewd by a reasonable observer may be categorically restricted, provided it cannot plausibly be interpreted as commenting on political or social issues.
• Speech that is not plainly lewd and can be interpreted as commenting on political or social issues may not be categorically restricted.

The court explained that whether or not speech is plainly lewd, profane or vulgar depends upon context, content, the form of the speech, and the age and maturity of the students. Using this framework, the court determined the bracelets were not lewd as they did not contain pervasive sexual innuendo that was plainly offensive. Additionally, the bracelets would be interpreted as part of a breast cancer awareness campaign, which it deemed an important social issue.

Because the district could not ban the bracelets under the Third Circuit’s established Fraser test, the court examined the bracelet ban under the Tinker standard. The court emphasized that under Tinker a school district must have “a specific and significant fear of disruption, not just some remote apprehension of disturbance.” Here, the record of disruption was skimpy and the court determined that when the ban was announced the district did not have a specific and significant fear of disruption.

The court also found insufficient evidence of disruption based on two isolated incidents that occurred after the ban, noting that “student expression cannot be suppressed simply because it gives rise to some slight, easily overlooked disruption.” The court also rejected the district’s argument that the ban is permissible under the other Tinker rationale because the bracelets invade other students’ Title IX rights to be free from sexual harassment. The district argued the bracelet was deemed inappropriate due to “the likelihood of a resultant increase in student-on-student sexual harassment” but failed to explain why the bracelets would breed an environment of “pervasive and severe harassment.” This argument was also discounted because the district failed to raise it before the lower court.

Given that the district could not justify the ban under either the Fraser or Tinker standards, the court affirmed the preliminary injunction awarded by the lower court finding that an after-the-fact money judgment would not make up for the students’ lost opportunity to wear the bracelets in school.

Five justices dissented, finding that the majority’s established test with the political or social issue prong “entirely eviscerates” the school district’s authority to effectively evaluate whether a student’s speech is protected. According to the dissent, this test fails because there is no guidance to determine the merit or value of any political or social comment a student attaches to his or her speech. Additionally, the dissent found the bracelet’s message to be an inappropriate sexual double entendre given that many middle school students are “susceptible to juvenile sexualization of messages.”

While the Third Circuit does not have jurisdiction over New York, courts of this state may find this decision persuasive when addressing similar issues. School districts should consult with their school attorneys when contemplating restricting clothing or jewelry with similar messages.