The students’ bracelets proclaimed “I ♥ boobies (KEEP A BREAST).” The Easton Area School District banned the bracelets as not suitable for school. In an en banc opinion today in B.H. v. Easton Area School District, the Third Circuit upheld the First Amendment rights of the students, affirming the district judge’s injunction against the school.
The bracelets were clearly speech and the school’s attempt to ban the expression brought the Supreme Court’s student speech cases into play: Tinker v. Des Moines IndependentCommunity School District (1969), Bethel SchoolDistrict No. 403 v. Fraser (1986), Hazelwood Sch. Dist. v. Kuhlmeier (1988) and Morse v. Frederick (2007).
The school district relied most heavily on Fraser, defending the bracelet ban as anexercise of its authority to restrict lewd, vulgar, profane,or plainly offensive student speech allowable under Fraser. However, in the en banc opinion joined by 9 judges, the Third Circuit held that although underFraser, “a school may categorically restrict plainlylewd, vulgar, or profane speech that offends for the same reasons obscenityoffends,” Fraser “does not permit a school to categoricallyrestrict ambiguous speech that a reasonable observer could interpret as havinga lewd, vulgar, or profane meaning and could plausibly interpret as commentingon a social or political issue.” (emphasis added).
The Third Circuit noted that the Tinker disruption standard remained as a “backstop” to the school’s argument, but held that here it was not effective. Tinker, the court asserted “meant what it said: ―a specific and significantfear of disruption, not just some remote apprehension of disturbance,” and in the case of the Easton School District’s ban on the bracelets the “recordof disruption is even skimpier” than it was in the case of the Des Moines school district’s ban on the black armbands at issue in Tinker.
For the 5 dissenting judges,there was some doctrinal disagreement over the controlling rationale of Morse (the “Bong Hits 4 Jesus” case), but the central issue was the applicability of Fraser. For the dissenters, the balance tips toward deference to the school and the fact that the phrase “I ♥ boobies! not only expresses supportfor those afflicted with breast cancer, but also conveys asexual attraction to the female breast,” allows the school to ban the bracelets. This is true even if “certain facts indicate that a sexualinterpretation of the ―I ♥ boobies bracelets may be at theouter edge of how a reasonable observer would interpretspeech.”
In a very short separate dissenting opinion, but signed by all 5 dissenters, Judge Greenaway, Jr. makes the point that the majority opinion provides little guidance to school districts. Thus, the “I ♥ boobies” Third Circuit opinion joins the “My Space” off campus school speech Third Circuit en banc opinion in 2011, which provided just a little guidance. Yet perhaps the guidance is this: school officials seeking to restrict student speech do so at their own peril.
RR
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