A Pennsylvania school district has no justification for banning students from wearing “I ♥ Boobies!” bracelets, a judge has ruled in an emphatic free-speech victory for two middle-schoolers who challenged the ban.

“The bracelets are intended to be and may be reasonably viewed as conversation starters to facilitate discussion of breast cancer, and to help overcome fear and taboo associated with discussing breast health,” U.S. District Judge Mary A. McLaughlin said.

The April 12 decision followed an evidentiary hearing at which the three principals of Easton Area Middle School testified that the bracelets violated the school's dress code because the phrase “I ♥ Boobies!” is an impermissible double entendre about sexual attraction to breasts.

The U.S. Supreme Court's precedent in Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986), allows school officials to censor student speech that can reasonably be considered lewd or vulgar. But in granting a preliminary injunction to students Kayla Martinez and Brianna Hawk, McLaughlin noted that “I ♥ Boobies!” is always accompanied by the words “Keep A Breast,” which refer to the foundation that distributes the bracelets.

“If the phrase 'I ♥ Boobies!' appeared in isolation and not within the context of a legitimate, national breast cancer awareness campaign, the School District would have a much stronger argument that the bracelets fall within Fraser,” she said.

Hawk and Martinez, who are friends, filed their First Amendment lawsuit in November after the school principals disciplined them for wearing the bracelets in defiance of the ban. Courts have often struggled with student speech cases involving messages on clothing, with schools defending censorship under Fraser or Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), which applies to disruptive speech.

But the district's evidence of disruption was puny, to say the least. There were two incidents of school administrators receiving reports of boys making inappropriate remarks about “boobies” in reference to the bracelets.

“Such isolated incidents are well within a school’s ability to maintain discipline and order and they did not cause a disruption to the School’s learning environment,” McLaughlin commented.

As far as lewdness, she said there is “no inherent sexual association with the phrase 'I ♥ [something].' For example, T-shirts that bear the slogan 'I ♥ NY' suggest affinity, not sexual attraction, to New York.”

McLaughlin also suggested that the school had “used lewdness and vulgarity as a post-hoc justification for its decision to ban the bracelets.” During the evidentiary hearing, she noted, principal Angela DiVietro

freely referred to the word “boobies,” but was noticeably unwilling to discuss other hypotheticals in open court. In reference to a hypothetical bracelet addressing testicular cancer, Ms. DiVietro became uncomfortable and explained “I don’t know if I can say the word that, you know ...”

Other school districts have banned “I ♥ Boobies!” bracelets. But the ACLU said in a statement that McLaughlin's decision “confirms that schools cannot censor student speech without a good reason. A student’s freedom to speak — especially about something as important as breast cancer awareness — cannot be shut down because the student chooses words the school administrator would not choose.”

By Matthew Heller
4/12/11