PHILADEPHIA (CN) – Two middle school students asked a federal judge for an injunction against the school district that suspended them for wearing rubber bracelets with the phrase “I [Heart] Boobies!” to school on Breast Cancer Awareness Day.
The case, which has major implications for the boundaries on freedom of expression in American public schools, was framed by the students’ attorney as a choice between intervention from the court or “delegation and deference” to school administrators.
Mary Roper with the American Civil Liberties Foundation said the 3rd Circuit “has always imposed a rather searching review” of the boundaries on the freedom of expression. If the court defers to the school district, “all of a sudden we have carte blanche” for administrators, Roper said.
A central issue in the case is determining the objective meaning of the so-called Fraser Standard, which stems from the U.S. Supreme Court decision in Bethel School District v. Fraser. In that case, the court backed a high school that suspended a student who, speaking before an auditorium of roughly 600 students, nominated another student for student government in a speech rife with sexual themes and double entendres. The court overturned the decision of two lower courts and decided that the suspension was legitimate, given the disruptive sexual content in the speech.
Roper said that while the speech at issue in Fraser was sexually graphic, the wristbands at the heart of this case conveyed a “very obvious, overt” message “that has nothing to do with attraction to breasts.” She said the bracelets represent a “socially admirable” message about the importance of breast cancer awareness.
“You need to look at context,” Roper said.
The lawyer cited the purported need by some school administrators to regulate attire that might be associated with gang membership.
Just because blue and red can signify gang affiliation, doesn’t mean “you can take the American flags out of the classroom,” she argued.
But John Freund III, counsel for the Easton Area School District, said the question isn’t about the students’ intentions. It’s about the “perception of the community.”
The bracelets convey an “undeniable second meaning,” he said.
“Even the Save-a-Breast people themselves admitted that there was interest in their product from truck stops, vending machines, porn stars” and Playboy magazine, Freund said, referring to the Keep a Breast Foundation, which produces the controversial product.
Roper contended that “Fraser cannot be about a matter of what is poor taste.” She added that there are “mountains of reasons to credit the other interpretation of these bracelets.”
The case questions whether wearing the wristbands threatens a “substantial material disruption” to the operation of the school, a standard established in the flagship 1969 decision in Tinker v. Des Moines Independent Community School District. In that case, the Supreme Court found that black armbands worn by students protesting the conflict in Vietnam were constitutionally protected, and that school administrators had to first prove that the student expression would considerably interfere with school operation if they wanted to curb that expression.
Roper said the district clearly failed to prove interference with school operations, rejecting the notion that “the school will fall into chaos” unless administrators are given “unquestioned discretion” when making determinations about items like the bracelets.
There were no reports of disruption until after the ban, and, even then, there were only two reports of boys making potentially objectionable breast-related statements because of the bracelets, Roper said.
“A couple of remarks about boobies does not amount to substantial material disruption” she argued. “That’s a Tuesday.”
But Freund said the Tinker case, which involved “viewpoint discrimination or issue preclusion,” was not the most analogous case to the dispute over wristbands. This case isn’t about issue preclusion because the students clearly have “alternative channels of communication” to support breast cancer awareness, Freund said.
“We’re not here to argue the message that breast cancer is an important issue for this country,” he said. “What we’re here to say is that the manner in which that is said can be regulated.”
With respect to Roper’s point about the importance of context, Freund said he was in “complete agreement.”
“This is a middle school,” Freund said. “That’s the context.”