The Easton Area School District board in Pennsylvania decided on Tuesday to try take its “boobies” case to the U.S. Supreme Court. The federal circuit and appellate courts have so far decided against the board.
Two middle school students were suspended for wearing bracelets that said “I ? boobies! (KEEP A BREAST)” because school officials said the bracelets were “lewd.” The students say the suspension violated their First Amendment right to free speech because they had been trying to promote breast cancer awareness.
The American Civil Liberties Union of Pennsylvania helped the girls sue the district in 2010. ACLU attorneys argued that the speech involved a social issue and not simply sexual innuendo, and the courts agreed.
“Because the bracelets here are not plainly lewd and because they comment on a social issue, they may not be categorically banned,” the Third Circuit U.S. Court of Appeals wrote in its decision in August. “The School District has also failed to show that the bracelets threatened to substantially disrupt the school under Tinker.”
Tinker v. Des Moines, a 1969 Supreme Court case, was similarly decided in favor of the students. Mary Beth Tinker, her brother John and a friend were suspended for wearing armbands to protest the Vietnam War. The landmark case established that schools must prove the speech will result in “material and substantial” disruption of school activities in order to ban it.
The Supreme Court grants a small number of requests to hear cases. During the 2011 term, there were 7,713 filings, according to Chief Justice John Roberts’ 2012 annual report. Of those 7,713, only 79 cases were heard.