Third Circuit Hears Arguments in the “i ♥ boobies” First Amendment Case, in which the Women’s Law Project Filed an Amicus Brief

Today, April 10, 2012, the United States Court of Appeals for the Third Circuit (the court that hears appeals from the federal district courts in Pennsylvania, New Jersey, Delaware, and the Virgin Islands) heard oral arguments in B.H., et al. v. Easton Area School District, a civil rights lawsuit stemming from a Pennsylvania middle school’s ban of breast cancer awareness bracelets.

In the fall of 2010, two female seventh and eighth grade students at a middle school in Pennsylvania were suspended from school and prohibited from attending a school dance for nothing more than wearing bracelets to raise breast cancer awareness.  The colorful rubber bracelets, distributed by the Keep A Breast Foundation, contain playful slogans, such as “i ♥ boobies! (KEEP A BREAST)” and “check y♥ur self!! (KEEP A BREAST).”  The Keep A Breast Foundation’s “I Love Boobies Campaign,” seeks to “encourage young people to target their breast health,” using the bracelets and apparel as “awareness-raising tool[s], allowing young people to engage and start talking about a subject that is scary and taboo and making it positive and upbeat.”

The Easton Area Middle School banned students from wearing these bracelets, and suspended two young women who challenged the prohibition by continuing to wear the bracelets, prompting the students to sue the school district in federal court for violating their free speech rights under the First Amendment of the U.S. Constitution. The rationale given by the school for the ban has changed since the litigation was filed, but the school initially claimed “that some Middle School students are uncomfortable with discussion of the human body” and “some male Middle School students had made some ‘embarrassing’ comments to female students about their breasts.”

Acknowledging that public school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” Tinker v. Des Moines Independent Comty. Sch. Dist., 393 U.S. 503, 506 (1969), the United States District Court for the Eastern District of Pennsylvania granted the students’ motion for a preliminary injunction to lift the ban, concluding:

[T]hese bracelets cannot reasonably be considered lewd or vulgar under the standard of Fraser.  The bracelets are intended to be and they can reasonably be viewed as speech designed to raise awareness of breast cancer and to reduce stigma associated with openly discussing breast health.  Nor has the school district presented evidence of a well-founded expectation of material and substantial disruption from wearing these bracelets under Tinker.

The school district appealed the case to the Third Circuit, which will have to decide whether to uphold the District Court’s ruling or reverse it. The Third Circuit heard arguments today, but it is not expected to issue any ruling for another few weeks or months.

In support of the students, Terry L. Fromson and Carol E. Tracy of the Women’s Law Project and David Cohen of the Earle Mack School of Law at Drexel University filed an amicus brief (“friend of the court” brief) on behalf of more than a dozen organizations dedicated to gender equality.  Amici request that the Third Circuit affirm the district court’s decision.  Reversing the district court’s decision, which would allow the school district’s bracelet ban to stand, would reinforce discriminatory and harmful notions about women’s bodies, perpetuate stereotypes about boys and girls, and silence young women from expressing themselves on issues of considerable importance to them, without contributing to a superior educational environment, such as by preventing sexual harassment.

The school district’s position that bracelets that include the words “boobies” and “breast” are lewd or vulgar is based on a male-centric view of the female body that sexualizes female anatomy.  The school district’s ban also perpetuates impermissible gender stereotypes that are inconsistent with the Equal Protection Clause of the Fourteenth Amendment by imposing stereotypes on both young women and young men: the school district attempts to enforce its apparent belief that young women should be less controversial and more demure and that boys will react to the bracelets in a stereotypically aggressive, sexually harassing manner.  Furthermore, the school’s ban silences young women during a pivotal time in their physical, cognitive, and emotional development and hinders their ability to reclaim their “boobies” for themselves and speak freely about their bodies and their health.  Instead of empowering its female students, as amici explain, the school’s ban sends the message to young women “that their bodies are likely to elicit violence and that they alone bear the burden of preventing violence by adapting their behavior.”  Thus, the school’s prohibition on young women’s speech sends very harmful messages to its students and should not be allowed to stand.