Back in December I told you about
a case arising from Easton, PA, regarding a middle school's efforts to discipline two girls for wearing "I ♥ Boobies!" bracelets on Breast Cancer Awareness Day.
On Monday, the Hon. Mary McLaughlin of the Eastern District of Pennsylvania ruled in favor of boobies and free speech, granting Plaintiffs' request for a preliminary injunction barring school officials from disciplining the girls for wearing the bracelet.
[The school had suspended them for a day and a half and sought to bar them them from the winter dance; the Court persuaded the school to allow the girls to attend the dance, but bar them from something comparable in the future should it prevail in the case.]
As the Court summarized, there are four Supreme Court cases that matter here: Tinker held that student expression may not be suppressed unless school officials reasonably forecast that it will “materially and substantially disrupt the work and discipline of the school.” Bethel expands this to allow schools to prohibit speech that is "lewd, vulgar, indecent, or plainly offensive" even in the absence of a substantial disruption. Morse v Frederick is the "Bong Hits 4 Jesus" case, allowing schools to ban speech that can “reasonably be regarded as encouraging illegal drug use."
In other words, if it's not dirty, not pro-drug and not school-sponsored speech, then it has to be disruptive to be bannable. So the first question addressed by Judge McLaughlin was, "well, was this lewd, vulgar, indecent, or plainly offensive?" Under Third Circuit precedent, a Jeff Foxworthy t-shirt mentioning Hooters wasn't (but calling teachers "douchebags," "skanks" or "tramps" does), and the standard applied by the Court was whether the Easton administrators' decision was a "reasonable" one. Here, it was not:
First, the Court cannot conclude that any use of the word “boobies” is vulgar and can be banned, no matter what the context. The word “boobies” in the context of breast cancer awareness does refer to a female’s breast. However, the words boob, booby, and bubby have a number of possible meanings, and thus context matters in interpreting the word. According to the Oxford English Dictionary, the word booby or boobie may refer to “a dull, heavy, stupid fellow: a lubber”, a clown, or a nincompoop. It may also refer to the last boy in a school class, the dunce. A booby is also a type of seabird. The word “boob” is defined as a slang word for breasts, but may also be a foolish mistake or blunder.
These bracelets have also been reported and widely discussed in the media. Many of these articles contain the phrase “I ♥ Boobies!” ...
Second, the phrase “I ♥ Boobies!” in the context of these bracelets cannot reasonably be deemed to be vulgar. “I ♥ Boobies!” is presented in the context of a national breast cancer awareness campaign. The phrase “I ♥ Boobies!” is always accompanied by the Foundation’s name “Keep A Breast.” If the phrase “I ♥ Boobies!” appeared in isolation and not within the context of a legitimate, national breast cancer awareness campaign, the School District would have a much stronger argument that the bracelets fall within Fraser. This is not the case here. One of the bracelets worn by B.H. did not even contain the word “boobies,” but rather said “check y♥ur self!! (KEEP A BREAST).” ...
Nor is the use of the phrase “I ♥ Boobies!” gratuitous. The words were chosen to enhance the effectiveness of the communication to the target audience. There is, of course, no inherent sexual association with the phrase “I ♥ [something].” For example, T-shirts that bear the slogan “I ♥ NY” suggest affinity, not sexual attraction, to New York.
Moreover, the administrators' testimony and actions undermined their argument for claiming "boobies" was too vulgar for the school enviroment:
The School itself used the word “boobies” in a prepared statement delivered by a student announcing the bracelet ban. A school would not have been willing to use lewd or vulgar language in a broadcast to its entire student body.* This supports a conclusion that the School did not actually consider the word “boobies” to be vulgar. It appears to the Court that the Middle School has used lewdness and vulgarity as a post-hoc justification for its decision to ban the bracelets....
The delay in both enacting the ban and announcing the ban also undermines the School District’s argument that the bracelets are lewd and vulgar. The record shows that the bracelets became popular among students at the beginning of the 2010-2011 school year, which began August 30, 2010. After the two plaintiffs wore the bracelets every day until mid- to late-September, the School took no action. The ban was never communicated directly from the administration to the students until October 27, 2010, which is approximately two months after students began wearing the bracelets to school.
* The Court notes that in her testimony, Ms. DiVietro freely referred to the word “boobies,” but was noticeably unwilling to discuss other hypotheticals in open court. In reference to a hypothetical bracelet addressing testicular cancer, Ms. DiVietro became uncomfortable and explained “I don’t know if I can say the word that, you know . . . .”
As such, the Court concluded, "boobies" wasn't vulgar. Nor was it disruptive, given that the school could only document two minor problems:
During Ms. Braxmeier’s October 28, 2010 conversation with a student about her “I ♥ Boobies! (Keep A Breast)” bracelets, the student stated that she believed one or possibly more boys had made remarks to girls about their “boobies” in relation to the bracelets. Second, on or about November 16, 2010, the Middle School administrators received a report that two female students were discussing the bracelets at lunch. A boy sitting with them interrupted and made statements such as “I want boobies” while making inappropriate gestures with two spherical candies. The boy admitted to the incident, and he was suspended for a day.
As such, the Court concluded that "the two events in October and November fail to create a 'substantial disruption.' Such isolated incidents are well within a school’s ability to maintain discipline and order and they did not cause a disruption to the School’s learning environment."
As such, the students win, the ACLU of Pennsylvania and the outside pro bono counsel wins, and the Court's order is clear:
The defendant is hereby ENJOINED from suspending, threatening to suspend, or otherwise punishing or disciplining the plaintiffs for wearing the bracelets presented to the Court in this case.
Wednesday night,
the Easton Area School District unanimously voted to appeal the ruling, with legal costs being covered by its insurance policy. In the meantime, you can purchase your own "I ♥ Boobies!" paraphernalia -- for yourself or your kids --
via this link.