Pa. Middle Schoolers Assert “ I ♥ Boobies!” Bracelets Protected by First Amendment

Represented by the ACLU of Pennsylvania, a group of parents and students have filed suit challenging their Easton middle school’s decision to discipline the students for wearing bracelets bearing the message, “ I ♥ Boobies! (Keep A Breast)." The bracelets, which the seventh and eighth grade girls wore as part of an effort to promote breast cancer prevention and research efforts, were deemed demeaning and distracting by school officials. In addition to being required to remove the bracelets and being suspended briefly, the girls were also forbidden from participating in extracurricular activities.  The complaint notes that the girls each had a relative or family friend who had battled breast cancer and   argues that the bracelets represent the students’ private speech communicating a health consciousness message. Because the students’ speech was not disruptive under Tinker or profane, lewd or indecent under Bethel, the complaint argues school officials’ punitive actions violated students’ First Amendment rights.     

Schools’ assertions of authority to enforce dress code rules have often been treated very deferentially by courts as the Fifth Circuit’s ruling in Palmer v. Waxahachie Independent School District illustrates.  In Palmer, the Fifth Circuit upheld a high school’s refusal to allow a sophomore to wear a “John Edwards for President” shirt during the 2008 campaign. The school’s dress code did not allow any shirts with printed messages unless the message was connected with a school club, sports team, university, or school spirit. (The Supreme Court later declined to take cert in Palmer.) Here the Easton district justified its disciplinary decision based on the fact that some students and teachers took offense at the bracelets’ language and perceived flippant tone.  District officials also stressed that, as might be foreseen among an  immature student population, the bracelets prompted some boys to make inappropriate comments about girls' breasts. 

JFB