‘I ? Boobies’ dispute may clarify schools’ ability to police ‘lewd’ speech

The future of students’ ability to express themselves on the grounds of public schools is dangling from a $3.99 rubber bracelet.

A federal court heard testimony Thursday in a First Amendment lawsuit brought by two Pennsylvania middle school students disciplined for refusing to remove breast-cancer awareness bracelets bearing what their administrators considered a “lewd” message: ” I ? Boobies! (Keep a Breast)”

In B.H. v. Easton Area School District, the students allege that they were summoned to the principal’s office at Easton Area School District Middle School on Oct. 28 and ordered to remove the bracelets. When they refused, they were issued written suspensions for “DISRUPTION, DEFIANCE/DISRESPECT,” and excluded from extracurricular activities.

By the students’ account, the bracelets were a common sight around the school for more than a month with no sign of disturbance, before administrators announced on Oct. 25 that anyone caught wearing the slogan would be disciplined.

A U.S. District Court in Philadelphia is considering the students’ request for a preliminary injunction against continued enforcement of the ban. The court did not immediately issue a ruling following Thursday’s hearing.

The students’ case relies on a straightforward application of the Supreme Court’s Tinker standard, which forbids public schools from restricting the content of student speech absent well-founded fear of a substantial disruption of school functions. Testimony at Thursday’s hearing established that the bracelets provoked one male student to act inappropriately, but whether the reaction qualified as “substantial disruption” is doubtful (even the anti-war arm-bands in the Tinker case incited some disturbance).

The school is pinning its argument almost exclusively on a 1986 case in which the Supreme Court ruled that a school could penalize “lewd” speech delivered by a speaker at a mandatory assembly. In that case, Bethel Area School District v. Fraser, the Court found that a student government nominating speech filled with leering double-entendres about “spurting” and “climaxing” was not protected by the First Amendment.

The school’s attempt to cram this speech into the Fraser framework misses the essential point of Fraser — that discipline was necessary in that context for the school to “disassociate” itself from a “sexually explicit monologue.” A speech from the podium of a mandatory school assembly might be interpreted as carrying the imprint of the school, but the message on a 14-year-old’s bracelet unmistakably is her own.

Moreover, the student’s speech in Fraser — a string of juvenile sex jokes — had no underlying message. The sexual content was the message. In the Easton case, both students testified that they intended to, and did, provoke discussion about the seriousness of breast cancer. The colorful word choice does what it is meant to do: start conversation. Absent a substantial disruption of school activities, that choice should be the speaker’s to make.

The most revealing moment of Thursday’s hearing came when Assistant Principal Anthony Viglianti was asked whether the school could even ban the use of the phrase “breast cancer awareness” on students’ apparel. Yes, he said, we can.

The only word to describe this testimony is “chilling.” That even the word “breast” could be declared contraband by the government — when used specifically in the context of “breast cancer” —  should cause courtroom observers to look out the window and check what country they are in.

Nobody outside of a principal’s office believes this. Zip, zero, nada. Walk down the street and ask one hundred people: “Should a school be able to suspend a kid for saying ‘stop breast cancer’ because it has the word ‘breast’ in it?” and one hundred people will tell you, “Of course not.” That a principal claims to have such breathtaking authority, unconstrained by common sense, amply demonstrates why he should not.

The school’s vision of its proper role would be at home in the darkest corners of Stanley Kubrick‘s imagination. In the view set forth in the school attorneys’ brief, the only time that students have any right to use sexual terms, even exceedingly mild ones, is during teacher-supervised classroom discussion. And if students want to express themselves on matters of public concern, the school gets to decide what form the expression can take — even if the students’ preferred method would not be disruptive. (School administrators testified that it would be OK to wear apparel with school-approved messages on school-designated “awareness” days — though it is confounding to formulate a breast-cancer message using no variation of the word “breast.” “Eliminate cancer of the upper torso region” would make for a mighty large bracelet.)

If the school is found to have the authority under Fraser to forbid “boobies bracelets,” the result could be extraordinarily damaging to students’ ability to participate in the discussion of social or cultural issues. If “boobies” (or even “breast”) is a categorically lewd term that can never be uttered in a non-teacher-directed context — even with the best of intentions — then what else is? Does it become a punishable offense for a student to say, “Don’t call people fags,” because the sentence has the word “fag” in it?

We can debate whether it is a sign of progress, or the Apocalypse, that the title of a Grammy-nominated song contains a four-letter profanity, but we cannot deny that it exists. Students want, need and deserve to engage in civil discourse about matters that concern them without fear of being kicked out of school by the decency police.