Students Can Wear “I Heart Boobies” Bracelets to School

Is an “I ♥ boobies (KEEP A BREAST)” bracelet expressing a lewd or disruptive sentiment and thus properly banned by a school?  Or is the bracelet,  promoted by “The Keep a Breast Foundation” working against breast cancer, a political statement that was not causing disruption, and thus not constitutionally prohibitable by a public school?

In essence that was the choice faced by the entire Third Circuit Court of Appeals in B.H. v. Easton Area School District.  In its 9-5 opinion, a majority found in favor of the First Amendment rights of the students, ruling that the school could not ban the “I ♥ boobies (KEEP A BREAST)” bracelets .  The bracelets, the court ruled, may have “ambiguous speech that a reasonable observer could interpret as having a lewd, vulgar, or profane meaning,” but because a reasonable observer could also “plausibly interpret as commenting on a social or political issue,” the school did not have the power to ban them.   Further, the majority of the judges found that there was nothing disruptive about the bracelets.

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The school argued that its authority would be diminished if it could not ban the bracelets and expressed its worries that there was a slippery slope of school attire that it needed to address.  The court found this argument unconvincing, noting that the slippery slope argument also worked in the other direction:

Like all slippery- slope arguments, the School District‘s point can be inverted with equal logical force. If schools can categorically regulate terms like “boobies” even when the message comments on a social or political issue, schools could eliminate all student speech touching on sex or merely having the potential to offend.

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Indeed, the the Middle School‘s administrators seemed inclined to do just that. They initially testified that they could ban the word “breast,” even if used in the context of a breast- cancer-awareness campaign, because the word, by itself, “can be construed as [having] a sexual connotation.”

The dissenting judges urged that schools needed more authority to discipline student expression.   Additionally, they argued that the majority’s opinion – - – which is over 60 pages – - – provided insufficient guidance to school authorities.  Yet perhaps the message of the court is clear: school authorities wishing to curtail students’ expressive attire do so at their own risk.

 I’ve also commented on this case on the Constitutional Law Professors Blog here.

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