WISCONSIN — Afederal judge on Monday upheld a Wisconsin middle school’s ban on “I (Heart)Boobies” breast cancer awareness bracelets, finding the ban does not violatestudents’ free expression rights.
U.S. District Judge Barbara Crabb refused to issue aninjunction stopping the Sauk Prairie School District from enforcing its ban onthe bracelets. The mother of Kaisey Jenkins, a student at Sauk Prairie MiddleSchool, sued the district in September claiming the ban infringes on the FirstAmendment rights of students.
The bracelets are distributed by the Keep A BreastFoundation to raise awareness of breast cancer. School administrators argue theslogan “I (Heart) Boobies” is inappropriate for a middle school. The district’shigh school has not banned the bracelets.
Crabb ruled the bracelets can be prohibited under theSupreme Court’s Bethel v. Fraserprecedent. The high court in that case held that student speech can be punishedif it is “lewd,” “vulgar” or “plainly offensive.” Lower courts have struggledto define the limits of that decision.
“I conclude that Fraserpermits schools to prohibit vulgar or offensive speech that is related to, butfalls just short of being, profane, obscene or indecent,” Crabb wrote in heropinion Monday.
She went on to hold that a “reasonableness” standard shouldapply when a court reviews a school’s discipline of such speech. Crabb found itreasonable for an administrator to consider the cancer bracelets vulgar.
Crabb’s decision is in stark contrast to a Pennsylvania ruling in a nearlyidentical case. There, a different federal judge found the same bracelets wereprotected expression and were not “inherently lewd.” That case is beingappealed to the 3rd U.S. Circuit Court of Appeals, which will hear oral argumentsin April.
“With respect, I disagree with the [Pennsylvania] court’sconclusion,” Crabb wrote. “The campaign uses these hints of vulgarity andsexuality to attract attention and provoke conversation, a ploy that iseffective for its target audience of immature middle students.”
No decision has been made on appealing Crabb’s ruling, saidTamara Packard, the student’s attorney.
Packard said she’s disappointed with the decision and thinksthe court’s “reasonableness” standard turns student speech rights into a “youknow it when you see it” test.
“I think the decision reflected a real tension in that Ithink it was a close call in this case,” Packard said. “And it suggests thatother judges, other school district administrators, might come down differentlyunder the same set of facts.”
Packard has the option of appealing Monday’s decision to the7th U.S. Circuit Court of Appeals or continuing on in the lower court. Thejudge left open the possibility that the school began enforcing the ban for areason other than the vulgarity of the message. According to court documents,administrators allowed the bracelets during the first half of the 2010-2011school year, but imposed the ban during the second semester.
“Public school officials do not have broad discretion to banany language they deem inappropriate or trivializing,” according to thedecision.
Sauk Prairie Superintendent Craig Bender said the district was pleased with the ruling and plans to continue its ban on the bracelets at the middle school.
The district’s attorney, Lori Lubinsky said she’s also pleased with the level of deference Crabb showed to schoolofficials.
“On a day-to-day basis, administrators have to make thetough calls and they make them in the context of what’s going on in theirdistrict and their building and with their students,” she said. “And it mayvary from district to district and it may vary from school year to schoolyear.”
Lubinsky said she can’t anticipate whether the case will endup before the Seventh Circuit, but cautioned that appellate guidance is oftendifficult for administrators to use as a guide.
“Let’s say there is an appellate-level review of this caseor the case out on the East Coast,” she said. “That doesn’t meant that the nextbracelet or the next T-shirt case is one in which there will be some definitivelaw that administrators can say, ‘Okay, now we know for sure which side of theline it’s drawn on.’”
Also on Monday, the American Civil Liberties Union ofIndiana filed a similar lawsuit challenging restrictions on the bracelets in anIndiana middle school.