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 Day 19

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Why Students Are Right and the Schools Are Wrong

The Case of the "I (Heart) Boobies!" Bracelets

by JULIE HILDEN

This Fall and Winter, an unusual First Amendment conflict has been playing itself out in public schools across the country — from California, to Minnesota, to Montana, to Pennsylvania, to Utah. On one side are students who are wearing bracelets proclaiming "I (Heart) Boobies!" On the other side are school administrators who claim the bracelets’ message is vulgar, disruptive, or both, and want to ban the bracelets.

In court in Philadelphia, earlier this month, testimony was heard in a First Amendment case involving the bracelets, which is being litigated on behalf of the affected students by the ACLU.

In this column, I’ll explain the context surrounding the bracelets, and cover some key Supreme Court precedents that may come into play in the Philadelphia ACLU lawsuit and in any other lawsuits that the controversy over the bracelets may spawn.

If the schools do win in the end, then the interests of students like Aryn Clark — who wears her bracelet to honor her cousin and aunt, who are both breast cancer survivors — will wrongfully lose out. The fact that some students may be using the bracelets to send a lewd message is no excuse for a school district’s drowning out the voices of students who, like Clark, are speaking sincerely.

Moreover, and more fundamentally, no matter what messages particular students mean to convey by wearing the bracelets, it is difficult to believe that mere bracelets can cause enough disruption at a given school to truly justify a ban.

The Nature of the Foundation Distributing the Bracelets, and the Bracelets’ Various Purposes

The bracelets at issue are sold by the Keep a Breast Foundation, which explains on its website that its "mission is to help eradicate breast cancer by exposing young people to methods of prevention, early detection, and support," and to "increase breast cancer awareness among young people."

The site notes that there is a popular misconception that breast cancer is only a concern for those over 40. It points out that, in fact, breast cancer is the leading cause of cancer deaths for women under 40 as well, and can even affect girls.

In addition, the site explains that the purpose of its "I (Heart) Boobies!" campaign is to "speak to young people in their own voice about a subject that is often scary and taboo." In addition to offering the bracelets, the foundation also distributes breast self-exam cards, and it is developing a kit for teachers who are interested in educating their students about breast cancer.

Thus, the bracelets — if worn for their original purpose, to raise awareness of a fatal disease about which there are common misconceptions — should not have been disruptive in the least, and should not have troubled any school official at all.

The question for the courts, then, is whether some students now mean something else when they wear the bracelets — and if so, how that possible alternative meaning should figure into a court case.

The question becomes complicated if some students (like Aryn Clark) wear the bracelets for the original, uncontroversial purpose of awareness-raising or honoring survivors, and others wear them simply to be edgy, trendy, funny, lewd or rude.

The First Key Supreme Court Precedent: Tinker

Three U.S. Supreme Court precedents may strike courts as especially significant in cases involving the "I (Heart) Boobies!" bracelets.

The oldest of the three is the 1969 decision in Tinker v. Des Moines Sch. Dist. There, three public-high-school students were suspended for wearing black armbands to school, to protest the Vietnam War.

In a strong pro-free-speech opinion, the Court vindicated the students’ exercise of their First Amendment rights. It held that a student " may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without ‘materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school’ and without colliding with the rights of others."

How might Tinker influence the "I (Heart) Boobies!" bracelet controversy? To the extent that courts see the rights of students who sincerely do want to send a breast-cancer-awareness message as being at stake, then Tinker may be a strong precedent cutting against schools’ banning the bracelets.

Sincere anti-cancer bracelet-wearers are much like the anti-war armband-wearers in Tinker . They are quietly, non-disruptively seeking change. And arguably, to seek changes in how society sees and approaches a particular disease is to seek a form of political change as well: Consider, for instance, early fights over AIDS funding.

The Second Key Supreme Court Precedent: Fraser

Another potentially key precedent here is the Supreme Court’s 1986 decision in Bethel School Dist. No. 403 v. Fraser.

In Fraser, Chief Justice Burger, writing for the majority, commented, " Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse." If "boobies" is deemed to count as such a term, then Fraser may be directly on point, and all the bracelet-wearers (sincere or not) may lose.

In Fraser, the conflict at issue arose when a public-high-school student repeatedly used an extended sexual metaphor in a speech in which he nominated a fellow student for an elective student office. To be more specific, the student who spoke implicitly compared his nominee to an erect penis, using double entendre.

Importantly, the student who spoke only used innuendo, and never obscenity. Indeed, although there is a lower standard as to what is "obscene as to minors," the innuendo at issue in Fraser did not meet even that lower standard.

That’s bad news for defenders of the "boobies" bracelets, because it seems to imply that school administrators may essentially make their own call as to what kind of speech is too "vulgar and offensive" for the school setting. Surely, the words that anger, say, network censors are prohibited in school too — but for all we know, the list may be much longer.

Importantly, too, the speech that the Fraser student gave was in no way disruptive in the sense of starting a fight or a commotion. Some students hooted and yelled during the speech; a few mimed sex acts; others supposedly looked bewildered. Yet the student’s suspension was still upheld by the Supreme Court, and Burger’s majority opinion strongly suggests that the Tinker disruption test and the "vulgar and offensive" standard are separate: Violate either one, and you lose.

The only good news here for the bracelet-wearers is that a win for the schools on these grounds could simply lead to "I (Heart) Breasts!" bracelets being substituted in for the "I (Heart) Boobies!" bracelets. Surely, the word "breasts" cannot itself be deemed vulgar or offensive.

The Third Key Supreme Court Precedent: The "Bong Hits 4 Jesus" Case

Finally, another potentially important precedent here is the 2007 decision in Morse v. Frederick, also know as the "Bong Hits 4 Jesus" case.

There, a student held up a banner with the message "Bong Hits 4 Jesus" on it, at a corporate-sponsored Olympic-torch-passing rally on a public street, which his class had been let out of school to attend. (I wrote about that case earlier, in FindLaw columns posted in September 2006, October 2006, and in July 2007, after the case was decided.)

In that decision, the Court majority held that the principal had the power to "safeguard" her students from a message that could "reasonably be regarded as encouraging illegal drug use."

Unlike Tinker and Fraser , Morse may not be precisely on point when it comes to the "I (Heart) Boobies!" bracelets case. But it is ominous — insofar as it can be seen as a rough indicator as to what the Court’s current stance on public-school students’ speech may be (although, of course, Justices Sotomayor and Kagan joined the Court after Morse was handed down, and we don’t yet know their views in this area).

In addition, there are a few specific reasons why I believe that the Morse decision doesn’t bode well for the "I (Heart) Boobies!" bracelets controversy. First, both conflicts involve somewhat cryptic, brief messages that seem to have a lighthearted component. And in practice, such messages are likely to be treated less seriously than, say, a full-blown Op Ed — even though, in theory, they are just as fully entitled to the protections of the First Amendment.

Second, the cryptic nature of each of the two messages opens the way to each message’s being read by the courts in the most damning way possible. Could "Bong Hits 4 Jesus" truly be reasonably read to advocate drug use as the Court majority claimed, or did it simply parody religion through a jokey formulation that actually made no serious statement at all? Could the "I (Heart) Boobies!" bracelets encourage a climate of sexual harassment if worn by boys — as some have claimed — or are school districts, by saying so, just grasping at straws to try to get rid of a trend that they dislike?

If the "I (Heart) Boobies!" bracelet controversy does set precedent, let’s hope it sets the precedent that both high-school students’ speech rights and anti-cancer messages (however creatively phrased) should be taken seriously and respected fully. Even a slim bracelet may carry a weighty message.

JULIE HILDEN practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. She is the author of a memoir, The Bad Daughter and a novel Three. She can be reached through her website.

This column originally appeared on Findlaw’s Writ.