A federal judge on Tuesday prevented a Pennsylvania school district from enforcing its ban on “I (Heart) Boobies” bracelets. The judge ruled the bracelets were protected expression under the First Amendment, and issued a preliminary injunction allowing students to continue wearing them to school.
The parents of two middle-school girls filed the suit against the Easton Area School District in November. According to court documents, the students were given in-school suspensions after they wore the cancer awareness bracelets despite the ban.
Key to the judge’s decision was a finding that the bracelets were not “lewd” or “vulgar,” as the district had argued. The U.S. Supreme Court held in a 1986 case, Bethel Area Sch. Dist. v. Fraser, that schools may punish such speech without running afoul of the First Amendment.
The judge found that the word “boobies” is not inherently lewd. The school district would have a stronger argument, she wrote, if the slogan appeared in isolation. But in this case, the term must be understood in the context of a national breast cancer awareness campaign.
“It appears to the Court that the Middle School has used lewdness and vulgarity as a post-hoc justification for its decision to ban the bracelets,” Judge Mary McLaughlin wrote.
The court declined to follow the logic of a 2000 ruling by the 6th U.S. Circuit Court of Appeals that allowed a school to ban Marilyn Manson shirts. That ruling, the judge wrote, is inconsistent with later Supreme Court precedent.
McLaughlin also soundly rejected the doctrine of in loco parentis, an antiquated concept that schools act in the place of students’ parents.
“[S]chool officials do not act in loco parentis for First Amendment purposes,” the judge wrote. “When public schools regulate student speech, they regulate speech as the government, not as parents.”
Attorneys from the ACLU of Pennsylvania are representing the students. In a news release, lead counsel Mary Catherine Roper praised the ruling:
“The court’s decision confirms that schools cannot censor student speech without a good reason,” she said. “A student’s freedom to speak – especially about something as important as breast cancer awareness – cannot be shut down because the student chooses words the school administrator would not choose.”