« Florida Court Backs School Search For Gun Based on Anonymous Tip | Main | U.S. Releases Guidance on School Discipline »

Education Groups Urge High Court to Take Up 'Boobies' Speech Case

Four major education groups are urging the U.S. Supreme Court to overturn a lower court ruling that upheld the right of students to wear "I ♥ Boobies" breast-cancer awareness bracelets.

The National School Boards Association and its Pennsylvania affiliate, along with National Association of Secondary School Principals and AASA, the School Superintendents' Association, filed a friend-of-the-court brief on the side of the Easton Area School District in Pennsylvania in a major battle over student speech rights.

"The 3rd Circuit ruling, we think, has serious implications for school officials, parents, and students, and we're urging the Supreme Court to review the decision, and reaffirm its recognition that school officials are the arbiters of appropriate student speech in schools," Thomas J. Gentzel, the executive director of the NSBA, said in a conference call with reporters Monday.

The Pennsylvania district filed its appeal last month of a decision by the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, that the "I ♥ Boobies"  bracelets worn by middle school students were not plainly lewd and were a form of commentary on a social issue that did not disrupt school.

School administrators view the breast-cancer bracelets as 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 students are Brianna Hawk and Kayla Martinez, who are now in high school.

The full 3rd Circuit court ruled 9-5 last August to uphold an injunction blocking the school district from barring the bracelets, which are sponsored by the Keep a Breast Foundation of Carlsbad, Calif.

The majority said that a school's leeway to categorically restrict ambiguously lewd speech ends when that speech could also plausibly be interpreted as expressing a view on a political or social issue, and the "I ♥ Boobies"  bracelets were clearly a form of social commentary.

In their friend-of-the-court brief in Easton Area School District v. B.H. (Case No. 13-672), the education groups contend that the 3rd Circuit court misread a key 1986 Supreme Court decision, Bethel School District v. Fraser, that gave school administrators a freer hand to discipline lewd student speech.

"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," the brief says.

During the conference call, Francisco M. Negrón Jr., the general counsel of the NSBA, said that school officials are seeing many messages that purposely contain double entendres.

"In other words, the messaging is intended to have double-entendre, to have double meaning, often of a sexual nature. That's part of the messaging's attractiveness," Negrón said.  "I don't want to go on record as uttering some of the double entrendres," he said, instead referring reporters to the brief for numerous examples.

"Breast cancer awareness is the tip of the iceberg when it comes to ambiguously lewd, plausibly political/social messaging," the brief says, referring to some catchphrases that are designed to promote causes such as testicular-cancer awareness, along with others that seem aimed squarely at juvenile minds.

"These messages may be protected speech in the mall, but are often inappropriate in a respectful, civil school environment," the brief says.

The students in the Easton case are being represented by the American Civil Liberties Union. They have received an extension to file their brief in response to the school district's appeal (and the education groups' brief). That response is due at the court on Feb. 5.

Notice: We recently upgraded our comments. (Learn more here.) If you are logged in as a subscriber or registered user and already have a Display Name on edweek.org, you can post comments. If you do not already have a Display Name, please create one here.
Ground Rules for Posting
We encourage lively debate, but please be respectful of others. Profanity and personal attacks are prohibited. By commenting, you are agreeing to abide by our user agreement.
All comments are public.

Follow This Blog


Most Viewed on Education Week



Recent Comments

  • shutters: Its difficult once your kids get older to keep them read more
  • Joel Reidenberg: The study does not challenge the value to local schools read more
  • Joe: So, public schools are collecting their students' data in ways read more
  • JT: I still find it unbelievable that people can work in read more
  • Sandra Surace: What can a person do who suffered retaliation by school read more