By Amal Bass, WLP Staff Attorney
In B.H. v. Easton Area School District, issued on August 5, 2013, the U.S. Court of Appeals for the Third Circuit upheld an injunction on the school district’s ban of “I ♥ boobies” breast cancer awareness bracelets. In this precedential decision, the Court acknowledges that student speech related to political or social issues receives First Amendment protection under the United States Constitution, even if that speech contains language that some people may consider lewd.
This decision, authored by Judge D. Brooks Smith and joined by eight other judges, comes after an en banc hearing of all fourteen judges of the Third Circuit on February 20, 2013. Previously, on April 10, 2012, a panel consisting of Judges Hardiman, Greenaway, Jr., and Greenberg heard oral arguments in this case but did not issue an opinion before the whole Court en banc took up the case (which is a relatively rare move for an appellate court). Those three judges ultimately dissented from the majority opinion.
At the center of this case are two middle school students in Pennsylvania who were suspended for wearing breast cancer awareness bracelets. The students were represented by Mary Catherine Roper, Witold Walczak, and Molly Tack-Hooper of the ACLU of Pennsylvania and Seth Kreimer of the University of Pennsylvania School of Law.
The students’ colorful rubber bracelets from the Keep A Breast Foundation displayed upbeat slogans, such as “i ♥ boobies! (KEEP A BREAST)” and “check y♥ur self!! (KEEP A BREAST),” with the purpose of raising awareness about a very important topic: breast cancer and women’s health. The school district’s ever-changing rationale for banning these health awareness bracelets included wanting to shield middle school students from “uncomfortable” discussions about the human body, concerns that male students would make “embarrassing” comments, and the allegedly sexual connotation of the term “boobies.”
Rather than protecting middle school students from “embarrassing” or “uncomfortable” messages, the school district’s ban on health awareness speech actually conveyed harmful messages to students about women. As 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 argued in their amicus brief (a “friend of the court” brief filed by a non-party) on behalf of a dozen organizations committed to gender equality, the ban sent harmful messages to students by reinforcing discriminatory notions about women’s bodies, perpetuating stereotypes about girls and boys, and silencing young women from expressing themselves on important social issues.
In its majority opinion, the Third Circuit acknowledged the difficulties in balancing “a student’s right to free speech and a school’s need to control its educational environment,” and provided the following framework for analyzing the free speech rights of students, citing Bethel School No. 403 v. Fraser, 478 U.S. 675 (1986), Tinker v. Des Moines Ind. Community School District, 393 U.S. 503 (1969), and Morse v. Frederick, 551 U.S. 393 (2007):
(1)plainly lewd speech, which offends for the same reasons obscenity offends, may be categorically restricted regardless of whether it comments on political or social issues, (2) speech that does not rise to the level of plainly lewd but that a reasonable observer could interpret as lewd may be categorically restricted as long as it cannot plausibly be interpreted as commenting on political or social issues, and (3) speech that does not rise to the level of plainly lewd and that could plausibly be interpreted as commenting on political or social issues may not be categorically restricted.
Under this framework, the Third Circuit concluded that the school district could not ban the “i ♥ boobies!” bracelets because they are not plainly lewd and because they comment on an issue of social importance. Additionally, the school district did not show that the bracelets substantially disrupted the school environment.
The Third Circuit also rejected the school district’s classic “slippery slope” argument, which the majority characterized as the district’s alleged “parade of horribles… [that] would follow from [the] framework,” specifically the encouragement of “more egregiously sexualized advocacy campaigns, which the schools will be obliged to allow,” including “‘I ♥ Balls!’” apparel for testicular cancer.” The Court addressed this logical fallacy by reiterating that school administrators will have to perform a case-by-case analysis of whether they can restrict speech. It also pointed to the opposing slippery slope argument had the school district’s restrictive view of student speech prevailed: that “schools could eliminate all student speech touching on sex or merely having the potential to offend,” which certainly cannot be the appropriate result either.
With this opinion, the Court has strengthened young women’s ability to raise awareness about breast cancer, a disease that affects almost a quarter million new women each year and, as the court acknowledges, is “unquestionably an important social issue.” This type of speech empowers students to speak about the social and political issues of importance to them, and, regarding the issue at hand, it also has the potential to save lives.