Two recent court decisions came to opposite conclusions on whether public schools could prohibit students from wearing breast cancer awareness bracelets that read “I ♥ boobies.”
In B.H. v. Easton Area School District, 725 F.3d 293 (3d Cir. 2013), the U.S. Court of Appeals for the Third Circuit held that the bracelets were admissible under the Supreme Court’s holding in Morse v. Frederick, 551 U.S. 393 (2007). The Third Circuit reasoned that Morse “establish[ed] new limits on a school’s ability to regulate student speech commenting on political or social issues.” The court held that schools may restrict speech if it is plainly lewd. However, if the speech is “ambiguously lewd,” schools may only restrict it if it “cannot plausibly be interpreted as commenting on a social or political matter.” Because the bracelets can be seen as commenting on a social matter—breast cancer awareness—the school was wrong to prohibit them.
The federal court for the Northern District of Indiana rejected the Third Circuit’s reasoning in J.A. v. Fort Wayne Community Schools, 2013 WL 4479229 (N.D. Ind. Aug. 20, 2013), and held that a ban on the bracelets was constitutional under the Supreme Court’s standard in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986). Under Fraser, the court reasoned, schools have the authority to restrict speech that is lewd, vulgar, obscene or plainly offensive, and it is the province of the school board to determine what constitutes such speech. Courts should defer to schools when they determine that student speech is lewd or vulgar because school officials know the age, maturity, and other characteristics of their students. The court articulated the dispositive question as “whether an objective observer could reasonably interpret the slogan as lewd, vulgar, obscene, or plainly offensive.” This question allows the schools their due deference and makes the subjective intent of the speaker irrelevant.
These two cases are just the latest in a growing body of law regarding the First Amendment rights of students. Careful consideration should also be given to developing a record of instances where student speech has disrupted the educational environment. With David Delaney, a board certified education lawyer, Dell Graham has litigated multiple student free speech cases and is on the forefront of education issues.