This article first appeared in the
January 22, 2014, issue of the National Law Journal’s Supreme Court Brief.
Federal courts
are split over whether schools can ban bracelets that say “i ♥ boobies! (KEEP A
BREAST).” The bracelets are part of a breast cancer awareness movement targeted
at youth, but some middle and high school administrators are crying foul. A
petition for certiorari on this free speech issue is pending at the U.S.
Supreme Court.
In its 1969 landmark
First Amendment decision, Tinker
v. Des Moines Independent Community School District, the Supreme Court
held that school officials could not bar young people from wearing black
armbands to school as a peaceful war protest. In 1986, though, in Bethel
School District No. 403 v. Fraser, the high court said that officials
could punish student speech that used vivid sexual imagery in a school
assembly.
The “boobies”
bracelet is a hybrid between the Tinker
armband and the Fraser speech: a
clothing accessory with a message, which some schools view as double entendre.
So far,
courts have not found that the bracelets substantially disrupt the school
environment, yet they have reached different results on the bans.
Schools won in
Indiana
and Wisconsin federal
district courts; those decisions were not appealed. Students won at the U.S.
Court of Appeals for the Third Circuit, sitting en banc in a Pennsylvania case.
The nine-member
Third Circuit majority determined that the “bracelets are not plainly lewd,” looking
to Fraser, and comment on “an undeniably
important social issue,” applying Justice Samuel Alito Jr.’s concurrence in
another student speech case, the Supreme Court’s 2007 Morse
v. Frederick.
Five judges on
the Third Circuit dissented.
What about “I
♥ vaginas” or “I ♥ testicles,” they asked, if couched as cancer awareness
slogans? “[S]chool districts would be powerless to address” them.
The dissent also
criticized the majority for treating Alito’s Morse concurrence as controlling and for deepening a circuit split on
the weight of Alito’s opinion (separate from the split about the bracelets).
Morse is better known as the “BONG HiTS 4
JESUS” case, quoting a banner that students unfurled at a school event. A
five-justice majority said that the banner was not protected speech in a school
setting, since it promoted illegal drug use.
The Third
Circuit dissent reasoned that since Alito joined that majority opinion, his
concurrence is dicta. For plurality rulings, the narrowest rationale controls,
but Morse was not a plurality.
Justice Anthony Kennedy also signed on to Alito’s concurrence.
The Third
Circuit majority responded that Alito and Kennedy cast the deciding votes, but
on the condition, spelled out in the concurrence, that Morse not be read to restrict speech that “comment[s] on any
political or social issue.” The social commentary language is binding and weighs
in favor of allowing breast cancer awareness bracelets, the Third Circuit
majority concluded.
A petition
for certiorari is pending at the Supreme Court on the Third Circuit
decision. Absent extensions, the response is due February 5.
The justices may
opt to wait until more federal appellate courts have vetted the bracelet bans or
otherwise choose not to disturb the rulings below.
In 2012, the
justices declined to review two en banc decisions—also from the Third Circuit—about
another free speech battleground for students and schools: online
posts. The circuit had sided with students who created fake and vulgar
MySpace profiles about their principals, while off school property.
