First Amendment

'I (heart) boobies' bracelets can't be banned by middle school, en banc court rules


Image from Keep A Breast Foundation.

A federal appeals court has cleared the way for middle school students in a Pennsylvania school district to show their support for breast-cancer awareness by wearing “I (heart) boobies” bracelets.

In a 9-5 en banc opinion, the Philadelphia-based 3rd U.S. Circuit Court of Appeals upheld an injunction preventing the Easton Area School District from banning the bracelets, report the Express-Times, the Associated Press and Education Week’s School Law blog. How Appealing notes the stories and links to the decision (PDF).

The school had contended it could ban the bracelets on two grounds allowed under Supreme Court precedent that balances the First Amendment with the need for school discipline. The first ground was the school’s authority to restrict vulgar, lewd, profane, or plainly offensive speech. The second was its authority to restrict speech that is reasonably expected to substantially disrupt the school.

The 3rd Circuit disagreed with the school’s conclusions. “Because the bracelets here are not plainly lewd and because they comment on a social issue, they may not be categorically banned,” the court majority said. The opinion also said the school had failed to show a threat of substantial disruption.

Middle-school students Kayla Martinez and Brianna Hawk had filed the suit after they wore the bracelets to school in 2010 during the school’s observation of Breast Cancer Awareness Day, despite an announced ban on the bracelets. The girls were given an in-school suspension and initially banned from attending the Winter Ball, though the school district reversed course on the Winter Ball at the urging of the federal trial court.

The case is B.H. v. Easton Area School District.

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