A full federal appeals court has decided to take up the question of whether a school district may bar “I ♥ Boobies” breast cancer awareness bracelets.
As I reported in the blog in 2011, the rubber bracelets are sponsored by the nonprofit Keep A Breast Foundation of Carlsbad, Calif., and feature slogans such as “I ♥ Boobies (Keep a Breast)” and “Check y♥urself (Keep a Breast).” They are meant to facilitate discussion about breast cancer and breast health, but some school officials believe students wear them with the ulterior motive of displaying a vulgarity in school.
In April 2011, a federal district judge issued an opinion in H. v. Easton Area School District blocking the Pennsylvania district from enforcing its ban on the bracelets. Officials at Easton Area Middle School believed the reference to “boobies” was vulgar and inappropriate for middle school students. Two students who were suspended for defying the prohibition challenged it in court through their parents as a violation of their First Amendment free-speech rights.
The district judge held that the bracelets could not be considered lewd or vulgar under the Supreme Court’s 1986 decision in Bethel School District v. Fraser, which gave schools the authority to punish lewd student speech.
A three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, heard arguments in April of this year, and it apparently circulated a draft opinion among the members of the full court, but it did not issue its ruling publicly. On Aug. 16, the full 3rd Circuit ordered “en banc” rehearing in the case, meaning the full appeals court will examine the issue.
The 3rd Circuit court did not indicate when the case would be reargued. (Hat Tip to How Appealing for the rehearing announcement.)