The Third Circuit Court ruled this month that the popular cancer-awareness "I Love Boobies" bracelets cannot be banned in schools, holding that a "school's right to ban speech that could be reasonably construed as lewd or vulgar does not extend to possibly offensive language that comments on social or political issues."
In 2011, Brianna Hawk and Kayla Martinez were suspended from their Easton middle school in Philadelphia for wearing these bracelets. School officials reasoned that the slogan is a sexual double entendre that could lead to classroom disruptions, and said that two boys had attempted to touch Hawk and Martinez inappropriately. When Hawk and Martinez sued their school for the suspension, they found out through friends that teachers had "called the lawsuit a waste of time."
But to Martinez, the case was worth fighting for on a deeply personal level. Her aunt had passed away from breast cancer, and she wore the bracelets in her memory. She also said that many of her fellow classmates had noticed the bracelets and asked her what they were about, thereby, she argued, proving that the bracelets do indeed start conversations on breast cancer.
The "I Love Boobies" bracelets are produced by the Keep A Breast Foundation, a nonprofit organization whose mission is to raise awareness of and reduce breast cancer through educating younger people like Hawk and Martinez. Keep A Breast earns a profit of $1.50 for each bracelet sold via third party vendors and $4 from its own sales.
Unsurprisingly, the ACLU stepped in to help Hawk and Martinez in 2011. Mary Roper, the ACLU attorney, argued that the school district must look at the bracelets in context. In isolation, the bracelets may be vulgar or lewd, but since the bracelets are part of a breast cancer awareness campaign and aren't things "written on a bathroom wall," they are not inappropriate.
Federal judge Mary McLaughlin agreed, opining that "the bracelets can … reasonably be viewed as speech designed to raise awareness of breast cancer and to reduce stigma associated with openly discussing breast health … If the phrase 'I Heart 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."
Judge McLaughlin's decision was based on the 1986 Fraser case, which set the standard of "whether the speech at issue is lewd, vulgar, or otherwise offends for the same reason that obscenity offends." In her decision, the word "boobies" did not meet the Fraser standard because the word is not only slang for "breasts," but according to the Oxford English Dictionary, also means, among other things, "a nincompoop," or a "clown." She also ruled that "the district had offered no evidence that the bracelets caused a substantial disruption," thereby concluding that the bracelets could not be banned as a means to prevent them.
When the case reached the Third Circuit Court this month, the court, in a split en banc opinion, upheld McLaughlin's decision. During the hearing, John Freund, the attorney representing Easton school district, made a comment that "evoked laughter from the attorney and the audience." This gesture offended Chief Judge Theodore McKee, who said, in addition to not finding any sexual meaning in the word "boobies," that "tThe mission of the girls was to remove the stigma of breasts that you (Freund) seem to be reading into the message. I suggest your chuckle is less mature than the conduct of these kids here."
Not everyone agreed with McKee and McLaughlin, of course. Freund stated that one teacher had told him that when her class read a poem with the word "breast" in it, her students had erupted into such a disruptive round of laughter that she was forced to stop teaching, supporting his claim that the middle school students are not mature enough to handle such language and ideas. He also claimed, moreover, that one male student told a female student that he "hearts" her boobies after learning about the bracelets. Judge Hardiman also disagreed with McKee, writing in his dissent that "the majority's approach vindicates any speech cloaked in a political or social message even if a reasonable observer could deem it lewd, vulgar, indecent, or plainly offensive."
Hawk and Martinez's case is not the first involving the bracelets. Disputes have arisen nationwide, though Hawk and Martinez were the first to file suit. In 2010, two boys in Washington state, Dakota Jewell and Zack Jordan, were also suspended from their high school for refusing to remove their bracelets. As a show of solidarity, many other students began to don the bracelets upon hearing about their suspension. This led to more suspensions in the school.
If the bracelets were known to be part of a breast cancer-awareness campaign, it shouldn't have been that big of a deal. Though the school official's position is understandable, it wasn't the case that the students had no idea what those bracelets were about. According to the foundation, approximately 7 million bracelets have been sold around the country, so students are already familiar with Keep A Breast and the issues it advocates for. When I was in high school, I saw one of my male classmates wear a T-shirt that read "13 Inch Member." Unlike the bracelets, whose slogan is always written next to the Keep A Breast Foundation's logo, this shirt had no logo, and no indication that its purpose was to raise awareness about anything. (Testicular or prostate cancer, perhaps? It seemed more likely to be an advertising campaign for penis enlargement supplements, if it were to raise awareness of anything at all.)
But no one said anything, and he didn't get reprimanded by any school official. So why the discrepancy?