Student free speech prevails, as Supreme Court refuses 'boobies' bracelet case

The US Supreme Court on Monday let stand an appeals court ruling that seventh- and eighth-grade students in a Pennsylvania school district have a free speech right to wear bracelets proclaiming “i ♥ boobies!”

School officials had asked the high court to take up the case and reverse the ruling to allow administrators more leeway to censor messages worn by students at school. The high court turned aside the appeal without comment.

The bracelets were designed to build awareness of the struggle against breast cancer, and wearing them became a fad among a group of 11- to 14-year-old middle-school students in the Easton Area School District in eastern Pennsylvania.

School officials were uncomfortable with the sexual double-entendre and concluded that the slang reference to female anatomy constituted lewd or vulgar speech that detracted from the school’s educational purpose. They worried that the bracelets might contribute to a sexually hostile environment at school.

They banned the bracelets.

They took the action even though the school district had voted to recognize Breast Cancer Awareness Month. In an effort to enforce the ban, a school official made a televised announcement instructing students not to wear the bracelets to school. That announcement was made the day before Breast Cancer Awareness Day.

Most students followed the mandate. But two female students, ages 12 and 13, wanted to make a statement. They asked their mothers for permission to wear their bracelets to school to show solidarity with those fighting the disease and in defiance of the school ban. The mothers agreed.

At school, administrators confronted the girls and ordered them to remove their bracelets. They refused.

Both were placed on in-school suspension for the rest of the day and another full day. They were also barred from attending the school district’s Winter Ball.

The students sued. A federal judge agreed with the girls that the “i ♥ boobies!” message is not inherently sexual.

The school district appealed.

The full Third US Circuit Court of Appeals in Philadelphia took up the issue and also sided with the girls. Voting 9 to 5, the appeals court said the message on the bracelets is protected speech by the students because “i ♥ boobies!” is not plainly lewd and can plausibly be interpreted as commenting on a social issue.

In asking the Supreme Court to overturn the Third Circuit decision, lawyers for the school district argued that the appeals court undercut the authority of school officials to bar messages from their schools that they consider lewd, vulgar, profane, or obscene.

“There is no suggestion in… [existing Supreme Court precedents] that student speech full of sexual innuendo or scatological implications must be tolerated by the Constitution just because an argument can be made to connect them with some political or social cause,” John Freund III, a Bethlehem, Pa., lawyer, wrote in his brief on behalf of the school district.

He said the appeals court abused its discretion. “School administrators should have the authority to prohibit speech reasonably deemed lewd,” Mr. Freund said.

Arguing for the girls, lawyers with the American Civil Liberties Union urged the high court to reject the appeal and allow the Third Circuit decision to stand.

They said the girls had worn the bracelets to school for two months without incident prior to the school’s ban. The ACLU lawyers said the bracelets are part of a positive campaign to spread awareness.

The bracelets are part of a campaign “designed to resonate with young women by employing familiar language that young people will find neutral and non-threatening,” wrote Mary Roper of the American Civil Liberties Foundation of Pennsylvania in her brief.

The girls and their peers do not consider the term “boobies” to be vulgar, she said. They use the term to refer to their own and other women’s breasts, Ms. Roper said.

She said the girls did not view the bracelets as a sexual double-entendre.

“The bracelets sparked conversations with their classmates about breast cancer, and did not provoke any sexual comments about ‘boobies,’ " Roper said.

School officials said in their petition to the high court that some middle-school boys had made harassing comments about how they liked “boobies,” too.

Lawyers for the girls said the reports are overblown.

A friend of the court brief filed by the National School Boards Association (NSBA) warned that the Third Circuit’s decision presents school officials with an unworkable standard for student speech that will undermine school discipline.

“If left undisturbed, this new standard for analyzing regulation of student speech will leave school officials powerless when students push the envelope by including a sliver of political speech in an otherwise inappropriate image or phrase that school officials have determined has no place in that learning environment,” wrote Francisco Negron Jr., in his brief on behalf of the NSBA.

“School officials in the Third Circuit must now attempt to apply a new complex test to lewd student expression on endless ‘plausible’ political and social issues – testicular cancer, colo-rectal cancer, immigration, education, politics, the US military and its role in foreign affairs – none of which will be subject to regulation unless they meet some legally defined notion of ‘plainly lewd,’ ” he said.