If you love boobies, raise your wrist. To raise awareness for breast cancer research, the Keep A Breast Foundation sold plastic wrist bracelets with the words “I (Heart) Boobies” on them. Those bracelets found their way to the wrists of students at a middle school in Easton, Pennsylvania.
The school district, which said the slogan was distracting and demeaning, put out a policy advising the students that they were not to be worn in school. Two students, wearing the bracelets with their parents’ permission, were suspended for defying the ban, and sued the school district, claiming that the school district’s ban violated their right to free speech.
The First Amendment says that Congress shall make no law abridging the right to free speech. Public schools, as agents of the government, have an obligation to uphold Constitutional mandates.
But are students in a school protected? Anyone who has been to school knows that kids don’t have the right to say whatever they want, dress however they want, or otherwise express themselves exactly as they would choose. So what right does a school have to tell students what slogan they can and cannot wear?
As you may imagine, as long as schools have had rules limiting students’ expression, students have fought those rules.
In 1965, an era fraught with student protests over the Vietnam War, a middle school student in Des Moines, Iowa, named Mary Beth Tinker, along with her brother and a friend, wore black arm bands to school in opposition to the war.
The Des Moines School District had a policy forbidding the wearing of armbands. When the students refused to remove the armbands, they were expelled.
Mary Beth Tinker fought for her right to wear the armband all the way to the Supreme Court. The case, known as Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) is cited to this day as the standard for the rights that public school districts have in limiting the free speech rights of students.
The first question the Court considered is whether students have the right to free speech while they are in the classroom. The court found that they do have a right to freedom of speech.
“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” the Court said.
But, according to the Court, those rights must be balanced against the need for the school to provide a safe learning environment.
If the school chooses to limit a student’s free speech, according to the Court in Tinker, it can’t do so based on “undifferentiated fear or apprehension of disturbance,” but instead the school may only limit speech where it would otherwise “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”
Since the school district couldn’t demonstrate the speech would cause a substantial disruption, the policy forbidding the wearing of armbands was found to be unconstitutional.
Now, almost 45 years after Mary Beth Tinker took her right to wear an armband to the Supreme Court, the federal courts were again asked to determine whether a school’s prohibition on the wearing of a band—this time on a wrist—declaring the wearer’s love of boobies, was constitutional.
The 3rd Circuit Court of Appeals, sitting en banc (all the judges participated, rather than leaving it to a panel of three as is customary), decided as they did in Mary Beth Tinker’s case, that the limitation was unconstitutional.
The Easton school district has 90 days to determine whether to appeal this decision to the Supreme Court.
Amy E. Feldman is the legal education consultant to the National Constitution Center. She is the general counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.
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