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Wednesday, April 13, 2011

Boobies and vulgarity in public school

Back in September, I wrote about controversies springing up over public-school kids wearing the "I Love Boobies" rubber wristbands and other merchandise, marketed by Keep-a-Breast, an organization dedicated to raising awareness about breast cancer in young people, particularly teen-agers. Officials in several school districts had banned those items and suspended students for wearing them. I decried this development, although I predicted that any lawsuit likely would fail in a post-Morse world.

I am happy to say I was wrong. Two middle-schoolers near Easton, Pennsylvania, challenged a district ban on this mechandise; yesterday Judge McLaughlin of the Eastern District of Pennsylvania held that the ban violated the First Amendment. Interestingly, Morse never really played a role in the case; the Court simply read the case as rendering speech advocating illegal drug use subject to regulation by schools. Instead, the Court held that the word "boobies" is not vulgar (at least not in this context) and thus not proscribable under Fraser; the word is part of a widely publicized and discussed message on a matter of public import, it is not gratuitous given the target audience and the connection to a serious advocacy organization and subject, and the school district did such a poor job of implementing, explaining, and defending the ban on the word (in real time and in the litigation) that its insistence on the word's vulgarity could not be taken seriously. Thus the regulation only could be upheld under Tinker if the school district could show a substantial disruption actually caused by the wrist bands, which it could not beyond a couple of small, isolated instances.

One limt on the opinion is that the next school district may do a better implementing its ban, which could produce a different vulgarity analysis. The district here waited two months before imposing the ban after a lot of back-and-forth. The initial justifications did not mention vulgarity, but focused instead on aleviating student discomfort with discussions of the human body and responding to complaints of some teachers who were personally offended by the bracelets. One administrator testified that the ban was justified as a way to reinforce the school's discretionary authority to regulate student dress. Oh, and the school announced the ban over the school PA system by using the word "boobies" to describe what was prohibited.

Interestingly, the court noted (although took no position on) the debate over an issue I have wondered about--whether such playful or suggestive slogans on serious subjects are an effective way of reaching certain audiences. The court cited to evidence of one teacher who opposed the bracelets because they are insufficiently serious or too "cutesy" in their treatment of breast cancer, although the court noted that, successful or not, the intent was to raise awareness, demonstrating the seriousness of the word's use. It also cites to a piece from last fall by Peggy Orenstein (herself a breast-cancer survivor) criticizing the attempt to make breast cancer "sexy," which risks not raising awareness, but hiding the seriousness and the pain of the disease and the need to take things such as self-exams and mammograms seriously. An interesting take on the subject. Ultimately, the court is right--we can discuss whether this is appropriate or wise advocacy, but it clearly is advocacy that should be protected, even (heaven fobid!) among young girls in public school.

Posted by Howard Wasserman on April 13, 2011 at 08:48 AM in Current Affairs, First Amendment, Howard Wasserman | Permalink


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I'm not convinced that this was the right result here. I completely agree that the "I Love Boobies" wristbands couldn't be prohibited under Tinker, given the lack of an actual or foreseeable substantial disruption. But I do think this bears some similarities to the double entendre that the Supreme Court held proscribable in Fraser. To be sure, advocacy about breast cancer awareness should be protected, and I was glad to see the school itself admit that it should allow students to wear wristbands encouraging females to check themselves and "keep a breast." But "I Love Boobies"? In middle school? I'm sympathetic to the school administrators' argument that this is distracting and inappropriate, at least to the same extent that the high school student's speech in Fraser was. I also can't help wondering whether the court would have been as sympathetic had the plaintiffs been middle school boys instead.

Posted by: Emily Gold Waldman | Apr 13, 2011 8:49:46 PM

I don't follow this area of the law, but one thing struck me was this: "connection to a serious advocacy organization and subject." I realize it's just one case and just one off-hand fact the court found worthy of some weight, but it strikes me as commercializing the decisision of what's important enough to warrant thought and discussion. It seems to me today that this permeates our culture. On yet another tangent, I also wonder what percentage of the profits from all of the bracelets and ribbons and what-nots with a message people buy actually benefits anyone in need. We do so much "raising awareness," but actions speak louder than words.

Posted by: Jen Kreder | Apr 13, 2011 5:46:10 PM

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