A federal appeals court in Pennsylvania has awarded a victory to some middle-school girls who were disciplined for wearing rubber wristbands with the message “I [heart] boobies! (Keep a Breast).” The bracelets were a lighthearted attempt to raise awareness about breast cancer, but school officials weren’t amused. “Boobie” wristbands now join black armbands as forms of symbolic speech by schoolchildren that are protected by the 1stAmendment.
In the landmark 1969 case of Tinker v. Des Moines School District, the Supreme Court upheld the right of children to wear black armbands to school to protest the Vietnam War. That decision contains this famous – and to school administrators notorious – statement: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The court ruled that schools could suppress student expression on controversial issues only if it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”
If the only case on the books were Tinker, lawyers for the Easton Area School District in Pennsylvania probably would have advised their clients not to fight the schoolgirls in court. But after Tinker the Supreme Court handed down two rulings that seemed to muffle Tinker’s clarion call.
In 1986, in Bethel School District v. Fraser, the court upheld the suspension of a high school boy who nominated a friend for a school office in a sexually suggestive speech. ("I know a man who is firm -- he's firm in his pants, he's firm in his shirt, his character is firm -- but most ... of all, his belief in you, the students of Bethel, is firm.”) “Surely, sniffed Chief Justice Warren Burger, “it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.”
Much more recently, in 2007, the court upheld the suspension of a student who, during an event outside the school building, unfurled a banner reading “BONG HiTS 4 JESUS.” Chief Justice John Roberts said it was appropriate to punish the student because a reasonable interpretation of the “BONG HITS” banner was that it was an endorsement of illegal drug use – and that “deterring drug use by schoolchildren is an important — indeed, perhaps compelling interest.”
But in the “boobie bracelet” case, the 3rd U.S. Circuit Court of Appeals went back to basics. Writing for the court, Judge D. Brooks Smith said that, although schools could ban speech that some might consider lewd, if it had no underlying political message, the “boobie bracelets” were protected because they expressed support for a national breast-cancer awareness campaign. Nor did the bracelets “substantially disrupt” school activities.
Although “boobie bracelets” may not sound like the stuff of great constitutional decisions, this is an important ruling (and it was handed down by the entire 3rd Circuit, not a three-judge panel). If the school district appeals, we may be in for another refinement of the doctrine that children don’t leave their free-speech rights at the schoolhouse gate -- much as nervous principals wish they did.