“Boobies” Case May Clarify Student Speech Rights

Boobies bracelets

(c) Keep a Breast Canada

Sometime in the next few weeks, the U.S. Supreme Court will decide whether to hear a case that has the potential to greatly clarify the free speech rights of students in public schools. While that is of course a very important issue not to be taken lightly, the actual area of contention in this particular case is an amusing one. If the highest court in the land does take on B.H. v. Easton Area School District, it will be deciding whether students have a right to wear bracelets that read “I ♥ Boobies!” to school.

The case began in 2010, when Easton middle school students Brianna Hawk and Kayla Martinez wore the bracelets — the sales of which benefit the Keep a Breast Foundation — to school during Breast Cancer Awareness Month. School administrators had previously issued a blanket ban on the bracelets and other “boobies” gear, claiming the word was “distracting and demeaning.” Hawk and Martinez were suspended, and their mothers joined with the ACLU of Pennsylvania to sue the school district. The case made its way through the district and circuit courts, each of which found that the bracelets did not cause a substantial disruption and the girls had a right to wear them in solidarity with family members affected by breast cancer and to raise awareness of the disease among their peers. Following the circuit court decision, the Easton school board voted 7-1 to appeal the case to the Supreme Court.

Sadly, the suppression of such non-disruptive student expression during school hours probably seems natural to many Americans, but the fact that it’s so common does not mean it’s constitutional. It only means that students rarely assert their free speech rights with the persistence shown by Hawk and Martinez. In a recent article for Slate, University of Georgia law professor Sonja West argues that school suppression of speech ultimately harms our society and the democratic system, as it “teaches our children—who, of course, one day become adults—that censorship, even broad and sometimes arbitrary censorship, is acceptable.”

When students have free speech at school, West says, they are much more likely to tolerate and even defend expression with which they may not agree as adults:

[Researchers have] found…that people are more apt to protect the expression they produce themselves or could imagine doing themselves. Thus students who have a learning environment that is supportive of free and open political debate, journalism, art, theater, and other types of expression are more likely to demand protection for those endeavors as adults. While it might be tempting to quash children and teenagers’ natural inclinations to push back on ideas or to question authority, these very traits are the lifeblood of our constitutional and political discourse.

Student free speech rights were defined by the Supreme Court in the landmark decision from Tinker v. Des Moines Independent School District. In that 1969 case, siblings Mary Beth and John Tinker and their friend Christopher Eckhardt had been suspended for wearing black armbands to school in protest of the Vietnam War. In his majority opinion in favor of the students, Justice Abe Fortas famously wrote that they did not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” But since that time, says West, the changing Court has watered down that endorsement of First Amendment rights for students:

Tinker only allowed regulation of student speech if there was a specific and significant fear of disruption and cautioned that schools are not ‘enclaves of totalitarianism.’ The court, however, has since green-lighted government censorship in numerous situations, including blatant censorship based on the viewpoint of the message and such malleable concepts as the schools’ stated interest in enforcing ‘the shared values of a civilized social order.’

Most recently, in the 2002 case officially called Morse v. Frederick but probably better known as Bong Hits 4 Jesus, a narrow majority of justices found that an Alaska principal was within her rights when she suspended a student who displayed that slogan on a banner as the Olympic Torch Relay passed by the school. The student was “promoting illegal drug use,” the majority found, and the school had a vested interest in discouraging such activity. In a bemused dissenting opinion, Justice John Paul Stevens echoed his predecessor Fortas, writing that “[m]ost students…do not shed their brains at the schoolhouse gate” and can decide for themselves whether a message has any validity. Indeed, this is a skill that students should learn in school, says West, since “[p]art of the great wisdom of our robust free-speech rights lies in trusting the audience to sort truth from falsity and valuable speech from nonsense.”

Of course, students do not learn about different viewpoints only from their peers; they’re also exposed to many cultures, opinions, and experiences through books. Too often schools respond to parent concerns about the content of certain books by trying to deny them to all students, but happily it seems more and more of those students are fighting back, simultaneously defending and using the rights accorded to them in Tinker v. Des Moines. If the Supreme Court does decide to take on the “boobies” case, let’s hope it bolsters those rights rather than further curtailing them.

We need your help to keep fighting for the right to read! Get in the Spirit of Giving, and help support CBLDF’s important First Amendment work by getting personalized holiday giftsmaking a donation, or becoming a member of CBLDF!

Maren Williams is a reference librarian who enjoys free speech and rescue dogs.