EdLawConnect Blog

Recently the U.S. Supreme Court denied review of a significant Third Circuit Court of Appeals decision involving breast-cancer awareness bracelets worn by middle and high school students around the country. The bracelets bear the message “I ♥ boobies! (KEEP A BREAST),” which some school administrators and teachers consider inappropriate. In B.H. ex rel. Hawk v. Easton Area School District (3d Cir. 2013) 725 F.3d 293, the Court of Appeals held a school district could not ban these bracelets or punish students for wearing them. When it denied review of the Third Circuit’s decision, the Supreme Court allowed that ruling to stand. (Easton Area School District v. B. H. ex rel. Hawk (March 10, 2014) 2014 WL 901854.)

Background

Five female students wore the bracelets to Easton Area Middle School in Pennsylvania during the 2010-2011 school year. Teachers considered whether they should take action, and an assistant principal directed teachers to ask students to remove wristbands with the word boobie on them, though there were no reports the bracelets caused any in-school disruptions or inappropriate comments.

In October 2011, the school observed Breast Cancer Awareness Day. Administrators announced a ban on the bracelets; the assistant principal used the word boobies in his announcement over the public-address system, as did a student on the school’s television station. The school encouraged students to wear pink, and provided pins bearing the slogan “Passionately Pink for the Cure” or a T-shirt reading “Real Rovers Wear Pink.”

When a school security guard directed student B.H. to remove her I ♥ boobies! bracelet, B.H. refused until another assistant principal convinced her to remove it. The next day, B.H. and other girls wore bracelets to observe Breast Cancer Awareness Day, and refused to remove them when instructed to do so by a security guard and the assistant principal. B.H. and K.M. served 1.5 days of in-school suspension and were forbidden to attend the Winter Ball. Their parents sought a restraining order in federal district court. At the court’s urging, the school allowed the girls to attend the Winter Ball. The district court denied the restraining order, but after a hearing, granted a preliminary injunction against the district’s bracelet ban. The district appealed to the Third Circuit, which affirmed the lower court, calling the district’s bracelet ban “an open-and-shut case” because the bracelets “are not plainly lewd.”

The Third Circuit’s Analysis

The court noted that although students do not shed their constitutional rights to freedom of expression at the schoolhouse gate, the First Amendment is “applied in light of the special characteristics of the school environment.” Students’ rights to freedom of speech are not automatically coextensive with the rights of adults in other settings. Under Tinker v. Des Moines Independent Community School District (1969), schools may restrict speech that threatens a specific and substantial disruption to the school environment or that invades the rights of others.

The court recognized three narrow circumstances when student speech can be restricted even without a risk of substantial disruption: (1) vulgar, lewd, profane, or plainly offensive student speech, even if it would not be obscene outside of school; (2) student speech that a reasonable observer would interpret as advocating illegal drug use and that cannot plausibly be interpreted as commenting on any political or social issue; and (3) school-sponsored speech that is reasonably related to legitimate pedagogical concerns.

Under Fraser v. Bethel School District No. 403 (1986) 478 U.S. 675, schools may also restrict “ambiguous speech” that a reasonable observer could interpret as lewd, vulgar, profane, or offensive, unless the speech could also plausibly be interpreted as commenting on a political or social issue. (See also Morse v. Frederick (2007) 551 U.S. 393 [school could prohibit student from displaying ambiguous “Bong Hits 4 Jesus” sign that could be interpreted as promoting illegal drug use].)

The court held the breast cancer awareness bracelets were not plainly lewd, so the school’s ban was not a reasonable exercise of its authority to prohibit lewd or vulgar speech. The term boobies bore no resemblance to the offensive “pervasive sexual innuendo” in the Fraser case; teachers had to request guidance about dealing with the bracelets; administrators did not conclude the bracelets were vulgar until students had worn them every day for nearly two months, and even used the term boobies in publicly announcing the ban; and a reasonable observer would plausibly interpret the bracelets as part of a national breast-cancer-awareness campaign. Significantly, there were no incidents of disruption before the school enacted its ban, and two isolated incidents of “inappropriate” remarks by middle school boys did not cause a substantial disruption.

School personnel must be cognizant of these considerations when addressing students who wear clothing or jewelry that expresses ideas, even with ambiguous messages. As the court in B.H. noted:

Student expression may not be suppressed simply because it gives rise to some slight, easily overlooked disruption, including but not limited to a showing of mild curiosity by other students, discussion and comment among students, or even some hostile remarks or discussion outside of the classrooms by other students.

One other court has addressed these bracelets in the school context, and it came to the opposite conclusion. In an unpublished decision, the federal district court for the Northern District of Indiana determined a school’s interpretation of the bracelets as “lewd or vulgar” was reasonable, and denied an injunction sought by a student whose bracelet was confiscated at school. (J.A. v. Fort Wayne Community Schools (N.D.Ind. 2013) 2013 WL 4479229.)