Students’ First Amendment Rights: Districts Cannot Restrict Speech or Symbolic Expression That Comments on Political or Social Issues
Students love to express themselves and their individuality, and they do so in a variety of ways. Some choose to do so through the manner of their appearance, such as long hair, short hair, colored hair, and the types of clothing they wear. School administrators have been taught that students do not “shed their constitutional rights of freedom of speech or expression at the school house gate.”1 Nevertheless, there are times when an article of clothing or jewelry worn by a student can cause concern because of the message it communicates.
It is clear that school officials have the authority to regulate student speech that is clearly lewd, vulgar, profane, expresses a threat of violence, or advocates for illegal drug use.2 What happens, however, when the student speech or expression may fall into a gray area and is not plainly or clearly lewd, vulgar or profane?
School administrators in the Easton Area School District in Pennsylvania were confronted with this problem when five middle school students came to school wearing bracelets that read “I ❤ boobies! (KEEP A BREAST).” The students wore them as part of a campaign initiated by the Keep A Breast Foundation to raise awareness about breast cancer.
After the students wore the bracelets to school every day for a few weeks, some teachers had concerns with them and brought those concerns to an assistant principal. One teacher thought they were offensive because, in her view, they trivialized breast cancer. Others were concerned that the bracelets could lead to offensive comments or invite inappropriate touching.
On October 28, 2010, the school was scheduled to observe Breast Cancer Awareness Month. In anticipation of the students wearing their bracelets, on October 27th, school administrators publicly announced a ban on any bracelets containing the word “boobies.” Nevertheless, on October 28th, two students, B.H. and K.M., wore their “boobies” bracelets. At lunch, a school security guard told them to remove the bracelets, but they refused. They also refused the assistant principal’s directive to remove them, asserting their right to free speech. Both students then received a one and one-half days in-school suspension and they were banned from the Winter Ball. Their parents were informed that they were being disciplined for “disrespect,” “defiance,” and “disruption.” On November 9th, the district instituted a district-wide ban on the bracelets.
The girls’ mothers then filed a lawsuit in federal court. They sought a temporary order to allow their daughters to attend the Winter Ball and a preliminary injunction against the bracelet ban. The district lifted its ban, and allowed the girls to attend the Winter Ball, but retained the option to impose a comparable punishment if the bracelet ban was upheld.
At the hearing regarding the preliminary injunction, the district shifted its position regarding its discipline of the girls; it instead relied on its dress-code policy as the basis for punishment. The dress code policy prohibits “clothing imprinted with nudity, vulgarity, obscenity, profanity, and double entendre pictures or slogans.” The district’s witnesses testified that the “boobies” bracelets had a “sexual double entendre” that could be harmful and confusing to students, particularly since middle school students often have an immature view of sex. The trial court granted the request for the preliminary injunction because the bracelets did not contain lewd speech and there was no evidence of a substantial disruption to the school environment.
Following the court’s order enjoining the enforcement of the bracelet ban, the district appealed to the Third Circuit Court of Appeals. On appeal the district argued that the bracelet ban was an exercise of its authority to regulate lewd, vulgar, profane or plainly offensive student speech.
The Third Circuit rejected the district’s argument. It held that
a school may . . . categorically restrict speech that—although not plainly lewd, vulgar, or profane—could be interpreted by a reasonable observer as lewd, vulgar, or profane so long as it could not also plausibly be interpreted as commenting on a political or social issue.3
The court found that the “boobies” bracelets
are not plainly lewd and express support for a national breast-cancer awareness campaign—unquestionably an important social issue–they may not be categorically restricted . . . .4
The bracelets were not plainly lewd because they do not contain “pervasive sexual innuendo” that is plainly offensive, and do not contain the seven words considered obscene. In fact, the students wore the bracelets for weeks without incident.
In rendering this decision, the court recognized that school officials are charged with the authority for determining what manner of speech is appropriate in a classroom or school assembly. It recognized that school officials understand the age, maturity and other characteristics of their students far better than judges. However, the court stated that judges are still left to determine whether a reasonable observer could interpret a student’s speech as lewd, profane or vulgar. The court reiterated that, in instances of ambiguously lewd student speech, school officials can restrict it, but not if the speech can plausibly be interpreted as communicating a political or social message.
In light of the Third Circuit’s decision, school administrators should review their dress code policies, and should discuss with staff the types of student speech and expression that can be regulated. Where the student speech or expression is ambiguously lewd or vulgar, school officials should consider whether it also expresses a political or social message. If it does, then the speech or expression cannot be restricted. As always, when in doubt, school officials should consult with the board attorney for appropriate legal advice.