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Supreme Court Declines To Hear About “I ♥ Boobies” Bracelets

I Heart Boobies

The United States Supreme Court decided today not to accept an appeal relating to just how far the limits of free speech go on a public school campus:

The U.S. Supreme Court on Monday declined to hear a school district’s appeal over an attempt by officials to ban breast cancer awareness bracelets bearing the message “I ♥ boobies,” handing victory to two students who challenged the decision on free speech grounds.

The court’s decision not to take up the case means that an August 2013 ruling by the Philadelphia-based 3rd U.S. Circuit Court of Appeals in favor of students Brianna Hawk and Kayla Martinez is left intact.

School officials at Easton Area Middle School banned seventh- and eighth-grade students from wearing the bracelets in October 2010 prior to national Breast Cancer Awareness Day. At the time, Hawk was in eighth grade and Martinez was in seventh.

The bracelets are sold by a group called the Keep-A-Breast Foundation, which supports breast cancer awareness. The group has expressed support on its website for students who have worn the bracelets against the wishes of school officials.

Both girls continued to wear the bracelets, citing their freedom of speech rights, and refused to remove them when asked. School officials punished the girls by giving them 1 1/2-day in-school suspension. The girls also initially were banned from the school’s winter ball, although they were later allowed to attend. The school district eventually banned the bracelets from all schools.

In some ways it’s unfortunate that the Court declined to take up this appeal, because it would have potentially gone a long way toward resolving some ambiguities in the law regarding the conflicts in the law between the First Amendment rights of students and the power and authority of school administrators to regulate on campus behavior and activity. Going as far back as 1943, in West Virginia State Board of Education v. Barnettewhich dealt with students challenging a school that purported to force students to salute the flag and recite the Pledge of Allegiance, the Supreme Court has made clear that the mere fact that a child is in scho0l doesn’t mean that they are denied the protections of the Bill of Rights. In 1969, the Court dealt with the issue of students’ First Amendment rights again in Tinker v. Des Moines Independent School Districta case which dealt with students protesting the Vietnam War in a public high school. The opinion in that case was written by Justice Abe Fortas is perhaps most well-known for it’s admonition that “”It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  Subsequent cases, however, have also given school authorities broad authority to regulate or punish speech deemed to be “indecent” or disruptive to the school environment. For example,  two other cases — Bethel School District v. Fraser and Hazelwood v. Kuhlmeier — seemed to limit the scope of student free speech rights, but both are unique cases; the Fraser case involved a student who had given a speech filled with sexual inneundo at an assembly, and Hazelwood involved the extent to which the school had editorial control over a school-sanctioned student newspaper. Most recently, in Morse v. Frederick, the Court had upheld a school’s decision to discipline a student who had unfurled a banner that said “Bong Hits 4 Jesus” despite the fact that there was no evidence that there had been any disruption in school and the fact that the event had actually occurred at an off-campus event. So, it’s fair to say that, in the 45 years since the Tinker decision the Supreme Court has steadily eroded student’s First Amendment rights in favor of school authorities.

It’s difficult and usually inadvisable to attempt to read anything into the Supreme Court’s decision not to hear a particular case. In reality, all that it really means is that there were fewer than four Justices who voted in favor of hearing the case. Nonetheless, the fact that both courts below in this case ruled in favor of the students may be an indication that the Court did not feel as though their previous precedents had been incorrectly applied in this situation. Had that been the case, then it would have been more likely that the case would have been accepted for appeal. At the very least, this means that the opinion of the Third Circuit Court of Appeals, which I’ve embedded below for anyone interested in how the law was applied in this case, will stand as precedent in the Third Circuit and, hopefully, as a guide for other Federal Courts when they are presented with cases dealing with infringements on the free speech rights of students.

B.H. v. Easton Area School District by Doug Mataconis

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. C. Clavin says:

    Because…who doesn’t like boobies???

    Like or Dislike: Thumb up 8 Thumb down 0

  2. Mikey says:

    I can’t think of a more appropriate song for this post than this one…

    Like or Dislike: Thumb up 2 Thumb down 0

  3. ernieyeball says:

    Fugs anyone?
    http://www.youtube.com/watch?v=EPVgKoruWdA

    Like or Dislike: Thumb up 1 Thumb down 0

  4. al-Ameda says:

    @Doug Mataconis:

    In some ways it’s unfortunate that the Court declined to take up this appeal, because it would have potentially gone a long way toward resolving some ambiguities in the law regarding the conflicts in the law between the First Amendment rights of students and the power and authority of school administrators to regulate on campus behavior and activity.

    I agree you on that.

    By the way, I’m of the opinion that this case was all about sex. Does anyone believe that had these students worn a “Support Our Veterans” bracelet that this would have gone to the Supreme Court? We have such a strange repressed and juvenile attitude toward anything that can be construed as sexual in nature that we can end up with cases like this. School officials no doubt objected to “breast” or “boobie,” and the rest is history.

    Like or Dislike: Thumb up 10 Thumb down 0

  5. Mikey says:

    @al-Ameda:

    We have such a strange repressed and juvenile attitude toward anything that can be construed as sexual in nature that we can end up with cases like this.

    Just another reminder (as if we needed one) of America’s Puritan heritage.

    Like or Dislike: Thumb up 9 Thumb down 0

  6. @al-Ameda:

    Does anyone believe that had these students worn a “Support Our Veterans” bracelet that this would have gone to the Supreme Court?

    I think that students wearing those bracelets would have never faced disciplinary action to begin with.

    Like or Dislike: Thumb up 12 Thumb down 0

  7. Tyrell says:

    These types of bracelets have become so common that most people don’t even notice. But I do believe that they could have been more discerning and chosen more appropriate words. Our young people today are exposed to a variety of inappropriate and just downright obscene language and images. We live in a steep decline of morality, an age of total trash in what we see in entertainment, music, internet, and public activities. I can remember when tv shows and movies could be watched by the whole family without fear of embarrassment. Leaders are caught in adultery and other acts of immorality. Couples co-habit. Yet few speak out. This is not an issue of freedom of speech. This judge could have at least commented on the poor wording on these bracelets and said something to the parents (who share some of the blame here). Have we become so calloused to the filth and coarse behavior that surrounds us that people either don’t notice or are afraid to say anything (worried they might offend someone) ? In my opinion this country would do well to return to some of that Puritan heritage. It worked then. And some Judeo-Christian influence won’t hurt either.

    Like or Dislike: Thumb up 0 Thumb down 14

  8. @Tyrell:

    What the hell is so offensive about the word “Boobies?”

    Like or Dislike: Thumb up 13 Thumb down 0

  9. Mikey says:

    @Doug Mataconis: It only starts with “boobies.” If we allow “boobies,” it’s only a short ride down the slippery slope to cannibal rapists.

    Like or Dislike: Thumb up 12 Thumb down 0

  10. PD Shaw says:

    @al-Ameda: Public schools are in a lose-lose situation here. They can be sued for monetary damages for failing to protect students from peer sexual harassment., which depending on the context is lewd comments and dirty jokes.

    And the funny part of it all is that private schools don’t have to give a damn about a student’s First Amendment rights.

    Like or Dislike: Thumb up 4 Thumb down 0

  11. ernieyeball says:

    @Tyrell: We live in a steep decline of morality,..

    From WikiP: The phrase “under God” was incorporated into the Pledge of Allegiance June 14, 1954, by a Joint Resolution of Congress…
    We have been going to Hell in a Handbasket ever since.

    Like or Dislike: Thumb up 7 Thumb down 0

  12. wr says:

    @Tyrell: My wife and I co-habited before we married 20 years ago, and if you had “spoken up” to me I would have told you exactly how much your opinion of my personal life meant to me.

    And frankly, the fact that we no longer have to make only TV shows and movies that are appropriate for the smallest children is a tremendous step forward in the evolution of an art form. I’m glad you’re happy with Gunsmoke reruns — and yes, that was a wonderful show — but please don’t demand that the entire world live according to your personal tastes.

    Like or Dislike: Thumb up 14 Thumb down 0

  13. JWH says:

    The judges already see enough boobs in Washington. They don’t need more.

    Like or Dislike: Thumb up 6 Thumb down 0

  14. al-Ameda says:

    @Tyrell:

    This judge could have at least commented on the poor wording on these bracelets and said something to the parents (who share some of the blame here).

    I’m still not sure how Breast Cancer Awareness becomes some kind of prurient interest – explain that to me.

    Like or Dislike: Thumb up 4 Thumb down 1

  15. argon says:

    The “Hooray for prostates” bracelets craze didn’t take off quite as well…

    Like or Dislike: Thumb up 6 Thumb down 0

  16. OzarkHillbilly says:

    @al-Ameda:

    By the way, I’m of the opinion that this case was all about sex.

    Let’s be honest here: So was the wearing of the bracelets. 7th and 8th graders get a case of the giggles every time some thing can be given a sexual tilt. At the very least I think it is safe to say that they boys weren’t wearing the bracelets to raise breast cancer awareness.

    Like or Dislike: Thumb up 4 Thumb down 0

  17. Mikey says:

    @OzarkHillbilly: Yes, that’s true. But we expect people to grow out of it when they get older. Unfortunately, many do not, and so we end up with silly court cases taking up time that would be far better spent addressing issues that actually matter.

    Also, there’s nothing wrong with using humor to draw attention to serious issues.

    Like or Dislike: Thumb up 6 Thumb down 0

  18. Tillman says:

    @Tyrell:

    We live in a steep decline of morality, an age of total trash in what we see in entertainment, music, internet, and public activities. I can remember when tv shows and movies could be watched by the whole family without fear of embarrassment.

    In the top five highest grossing movies last week: Mr. Peabody & Sherman, The Lego Movie. Both of which entertaining movies made for kids and adults to enjoy (for different reasons).

    Your average sitcom retains a Standards & Practices office and steers away from most blue language. The situations might need some explanation, but they are not in and of themselves “immoral” for being shown on television. Plus you have a bunch of great cartoons out there aimed at the younger audiences that are sophisticated enough for parents to enjoy.

    About the only thing that’s sincerely changed from your younger days is the immense availability of free pornography. Unlike the magazines of the ’50s, they have disclaimers.

    In my opinion this country would do well to return to some of that Puritan heritage. It worked then.

    If it worked then, for everyone, then we wouldn’t have changed it.

    Like or Dislike: Thumb up 6 Thumb down 0

  19. Tillman says:

    I can just picture Ruth Bader Ginsburg, soon to be started her eighty-second year of life, voting for this case if only to hear the word “boobies” repeated over and over in the august chambers of the Supreme Court.

    Like or Dislike: Thumb up 1 Thumb down 0

  20. grumpy realist says:

    @Tillman: That’s probably why they looked at it and said: “…um….no thanks, we’ll pass.”

    If the school administration had had an ounce of intelligence, they would have thanked the students for their support of ornithology and gotten some pictures to put up in all the classrooms.

    Like or Dislike: Thumb up 2 Thumb down 0

  21. Mikey says:

    @grumpy realist: And here are some great tits!

    Like or Dislike: Thumb up 1 Thumb down 0

  22. anjin-san says:

    We live in a steep decline of morality,

    So the human body and the effort to keep it health is somehow immoral?

    Dude, you need to lighten up. Hit the titty bars or something.

    Like or Dislike: Thumb up 2 Thumb down 0

  23. ernieyeball says:

    S, P, F, C, C, M, and Tits, wow. Tits doesn’t even belong on the list, you know. It’s such a friendly sounding word. It sounds like a nickname. ‘Hey, Tits, come here. Tits, meet Toots, Toots, Tits, Tits, Toots.’ It sounds like a snack doesn’t it? Yes, I know, it is, right. But I don’t mean the sexist snack, I mean, New Nabisco Tits. The new Cheese Tits, and Corn Tits and Pizza Tits, Sesame Tits Onion Tits, Tater Tits, Yeah. Betcha can’t eat just one…
    http://www.erenkrantz.com/Humor/SevenDirtyWords.shtml

    Like or Dislike: Thumb up 1 Thumb down 0

  24. ernieyeball says:

    @All_OTB_Oracles:
    Xtra Tits if U know the other 6 without looking…

    Like or Dislike: Thumb up 0 Thumb down 0

  25. ernieyeball says:

    In Other News:

    My faith in the youth of America was renewed the other day when I heard the busboy at Chili’s speak into his microphone trying to call his backup. “Can anybody hear me…can anybody hear me?” The kid was 19-20 maybe.
    “You sound like Al Sleet, the Hippy Dippy Weatherman…” I said. “You know who that is?”
    “George Carlin!” He grinned!
    I damn near fell out of my chair!

    Like or Dislike: Thumb up 0 Thumb down 0

  26. J-Dub says:

    @Tyrell: You forgot about cats and dogs living together.

    Like or Dislike: Thumb up 1 Thumb down 0

  27. grumpy realist says:

    @ernieyeball: If you want a laugh, look up the transcription for the first set of messages sent across the very first transatlantic cable. Arthur C. Clarke has a transcription in his book “The Odyssey File” when pointing out that the communications to Sri Lanka hadn’t improved that much….

    Like or Dislike: Thumb up 0 Thumb down 0