The Washington Post

Can a breast cancer bracelet be ‘lewd’?

National groups representing school boards, superintendents and principals are asking the U.S. Supreme Court to overturn a lower court ruling against a Pennsylvania middle school that tried to ban students from wearing bracelets stamped with the slogan “I (heart) boobies! (KEEP A BREAST)” as part of breast cancer awareness.

The U.S. Court of Appeals for the Third Circuit found in August that the ban violated the students’ rights to free speech at the Easton Area Middle School in Pennsylvania.

The national education groups said Monday that they are filing an amicus brief in the case, saying that they hope the Supreme Court will reverse the lower court decision.

At issue is how much control school officials can assert over student speech in public schools.

Francisco M. Negrón Jr., general counsel for the National School Boards Association, said the Supreme Court should reverse the appeals court ruling because an “established precedent” gives school districts the ability to regulate student speech that is "offensive.”

In Bethel School District v. Fraser, the Supreme Court ruled in 1986 that school officials can regulate student speech that is lewd or vulgar. In 1992, a federal district court found that a school could punish a student for wearing a “Drugs Suck!” T-shirt.

But in the Easton case, the U.S. Court of Appeals for the Third District ruled that the bracelets were not “plainly lewd” and “express support for a national breast-cancer awareness campaign — unquestionably an important social issue” and as such, cannot be categorically banned.

The Keep a Breast Foundation, a nonprofit organization, has been selling the silicone bracelets since 2004 as a way to raise awareness of breast health among girls and women ages 13 to 30, according to the ruling by the appeals court.

Five students who attend Easton Area Middle School wore the bracelets to school during the 2010-2011 academic year, raising concerns among teachers and administrators. School officials announced a ban of the bracelets.

But two of the girls, Kayla Martinez, then 12, and Brianna Hawk, then 13, defied the ban and said they were asserting their free-speech rights. The girls wore the bracelets on the school’s Breast Cancer Awareness Day. They were given in-school suspensions. The girls and their mothers filed a lawsuit against the school district.

Just because the bracelets are linked to a public health issue does not make them less offensive, Negron said. “There are a myriad of messaging for good causes that utilize double entendre,” he said. “Some of it is quite racy, some of it is certainly inappropriate. The messages are engineered to be that way, because that's the pull.”

NSBA is joined by American Association of School Administrators, the School Superintendents Association; the National Association of Secondary School Principals (NASSP), and the Pennsylvania School Boards Association (PSBA).

Lyndsey Layton has been covering national education since 2011, writing about everything from parent trigger laws to poverty’s impact on education to the shifting politics of school reform.

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