Circuit court sent clear message in “Boobies” case

National Constitution Center

It is a legal commonplace that courts generally should defer to the judgments of local school officials on matters of school operations and discipline.  Yet a case Hawk v. Easton Area School District might call even the most common of commonplaces into question.

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Hawk v. Easton will enjoy a short-lived celebrity status as the “I [heart] Boobies!” case.  But it is only the latest installment of “principal-ed” overreaction to potentially controversial student speech.  The Third Circuit came to the right conclusion, but it took a long way round the doctrinal barn to get there.

Link: Read the decision

In the case, several middle-school students (all girls) in Easton, Pennsylvania, wore to school bracelets that bore the message “I [heart] Boobies! (KEEP A BREAST).”

Sponsored by the Keep A Breast Foundation, the bracelets are meant to raise awareness of breast cancer—and to do so in a manner that young people will “get.”  (Personal disclaimer:  My daughters display a “Save the Tatas” slogan on various wardrobe items.  This message is also forbidden at Easton Area Middle School.)

In a nice twist of puritanical irony, on the day before the school was to observe Breast Cancer Awareness Month, the assistant principal used the word “boobies” to announce a ban on bracelets containing the word “boobies.”

A student made the same proclamation on the school’s television station.  When the bracelet-wearing girls refused to comply, they were punished with in-school suspension and were forbidden to attend the school’s Winter Ball.

So, once again, a court was asked “to find the balance between a student’s right to free speech and a school’s need to control its educational environment.”  This is not untrammeled judicial territory.

High-school students enjoy a precarious constitutional status.  While they do not, as it is famously said, “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” their First Amendment rights as students must be “applied in light of the special characteristics of the school environment.”

Supreme Court ruling on students and speech

Four notable Supreme Court cases have some possible application to the Easton case:.

Schools may restrict student speech when 1) it threatens a substantial disruption to the school environment or invades the rights of others (Tinker v. Des Moines, 1969); 2) it is vulgar, lewd, profane, or plainly offensive (Bethel v. Fraser, 1986); 3) it is sponsored by the school and is inconsistent with the school’s educational mission (Hazelwood v. Kuhlmeier, 1988); or 4) it advocates drug use (Morse v. Frederick, 2007).  Though first in this line of cases, Tinker is really the high-water mark of student speech rights.  The subsequent cases each carve out a narrow category of speech that a school may restrict even without the threat of substantial disruption.

The “boobies” bracelet could only be restricted under Tinker or Fraser.  Yet about the only evidence of disruption was the proud assertion of one middle-school boy—presumably made in solidarity with his bracelet-wearing classmates—that he too loved boobies.

Under Tinker, restrictions on student speech must be justified by more than “an undifferentiated fear or remote apprehension of disturbance”—and Easton did not have even this.

The school district made a feeble effort to evoke Tinker’s second prong—upholding restrictions on speech that invades the rights of others—but failed to show how the bracelets could breed an environment of pervasive and severe harassment.  So, it was Frasier or bust for Easton.

The Third Circuit spent most of its energy, and its readers’ patience, arguing that the holding of Fraser had been limited by the concurring opinions of Justices Anthony Kennedy and Samuel Alito in Morse.

This led the court, with Judge Smith writing for the majority, to the proposition that “schools may restrict ambiguously lewd speech only if it cannot plausibly be interpreted as commenting on a social or political matter.”

In other words, under Fraser, school officials may proscribe plainly lewd speech categorically, regardless of whether it comments on political or social issues; under Fraser + Morse, however, they may not proscribe ambiguously lewd speech if it could plausibly be interpreted as commenting on a social or political issue, even if a reasonable observer (say, a reasonable school official) might find it lewd (or vulgar, indecent, or plainly offensive).

Having lavished more than 6,000 words on the “narrowest question” doctrine, the court decided that the “boobies” slogan was not plainly lewd and it could plausibly be understood as commenting on a social issue.  Thus, the bracelet ban, it turns out, was “an open-and-shut case.”

Court rejects slippery slope argument

The court rejected the school district’s slippery slope argument that “I [heart] Boobies!” would marshal in a parade of “more egregiously sexualized advocacy campaigns, which the schools will be obliged to allow.”

The court was more concerned about a slippery slope of school censorship.  It was hardly comforted when school officials “initially testified that they could ban the word ‘breast,’ even if used in the context of a breast-cancer-awareness campaign, because the word, by itself, ‘can be construed as [having] a sexual connotation.’”

The majority opinion did not go uncontested.  In dissent, Judge Hardiman nicely shredded the majority’s Fraser-Morse engrafting job.  He went on to conclude that the judgment of the school officials was objectively reasonable.

The “I [heart] Boobies!” slogan could “reasonably be interpreted as inappropriate sexual double entendre.”  “In the middle school context,” Hardiman wrote, “the phrase can mean both ‘I support breast-cancer-awareness measures’ and ‘I am attracted to female breasts.’”  Also writing in dissent, Judge Greenaway bemoaned the lack of guidance provided by the “amorphous test” of the majority opinion.

This is all quite an unnecessary muddle.  Fraser proscribed speech that was “plainly offensive” because it was lewd and vulgar—period; it made no concession to lewdness or vulgarity in the service of public discourse; it made no mention of a reasonableness standard with regard to speech that is ambiguously lewd or vulgar; and Morse adds nothing—Judge Hardiman gets this right—to the offensiveness calculation.

Fraser involved an “elaborate, graphic, and explicit” sexual speech that was 1) delivered at “a school-sponsored educational program in self-government ” and 2) directed toward an unsuspecting and captive audience.  The speech was, so the Fraser Court said, “plainly offensive to both teachers and students”; and, by “glorifying male sexuality,” it was “acutely insulting to teenage girl students.”  This was hardly the “nondisruptive and passive expression of a political viewpoint” protected by Tinker.

Against this precedent, the bracelet ban should have been an open-and-shut case.

The bracelets were not plainly lewd or vulgar; indeed, they were, under Fraser, unambiguously not lewd or vulgar.  The actual slogan—with  “I [heart] boobies!” modified by the phrase “(KEEP A BREAST)”—is clearly a message designed to promote breast cancer awareness.  (That may explain why school officials first disciplined the girls for “disrespect” and “defiance,” without reference to inappropriate speech.)  The district court was entirely correct—and admirably succinct—on this point.

The Supreme Court has made neither the possibility of student tittering nor the prurience of school officials a measure of students’ free speech rights.  The authority to restrict student speech is not a license to control whatever might be perceived as disrespectful or to enforce antiquated notions of female virtue.  It ought to be long past the time when school officials got this unambiguous message.

Jeffrey Shulman teaches at Georgetown Law.  His book The Constitutional Parent:  Rights, Responsibilities, and the Enfranchisement of the Child is forthcoming from Yale University Press.

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