The case of two students punished for wearing "I ♥ Boobies" bracelets to their middle school has proceeded to an en banc hearing of the Third Circuit Court of Appeals which began yesterday.
The U.S. Court of Appeals for the 3rd Circuit is reviewing a 2011 lower court decision that issued a preliminary injunction enjoining the Easton Area School District (EASD) from enforcing its prohibition on the bands when the lower court determined that the bracelets cannot reasonably be considered lewd, vulgar or disruptive to the educational process, as is required for Pennsylvania schools to restrict student speech.
The case started when the nonprofit Keep A Breast Foundation of Carlsbad, Calif., began issuing the "I ♥ Boobies" bracelets to promote discussions of breast cancer in a way that would capture the attention of young people. Well, the bracelets certainly did that and became a source of contention on many school campuses across the United States.
As with other school districts, EASD decided that the reference to "boobies" was vulgar and inappropriate for its middle school students. After formalizing this rule, two students Kayla Martinez, then 12, and Brianna Hawk, then 13, wore the bracelets to Easton Area Middle School on Breast Cancer Awareness Day in defiance of the prohibition.
When the girls were disciplined by administrators at Easton Area Middle School for defiance of the rule, the parent's filed suit arguing that the discipline was a violation of the girls' First Amendment rights.
As is understandable, some who hear about this case wonder how such furor could be brought about by such a seemingly trivial matter. The case however could have the potential to set important speech precedents for public schools. If children are allowed to wear bracelets that to them contain sexual double entendres, what other suggestive and catchy slogans might be next? It was noted in court that other groups have picked up on the Keep A Breast Foundation strategy and similarly suggestive slogans have been adopted by groups supporting causes like testicular cancer.
This is the second time the case is being heard since that preliminary injunction was issued in 2011. EASD immediately appealed the earlier decision, and the case went to trial before a three judge panel in April 2012. However, in August of that same year, the court agreed to list the case for re-argument.
Thank you to Mark Walsh for bringing this decision to my attention.
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