First Amendment: Districts Can Broadly Define "Offensive" Speech, Dress and Ornamentation

Docket No. 10-3604-cv. United States Court of Appeals for the Second Circuit. 702 F.3d 655; 2012 U.S. App. LEXIS 24833

"Offensive Speech, a Matter of Public Concern, and Boobies"

By Todd A. DeMitchell

Professor of Education Law & Policy, Department of Education, Lamberton Professor, Justice Studies Program, University of New Hampshire

and

Richard Fossey

Mike Moses Endowed Chair in Educational Administration, University of North Texas

Over the past fifty plus years, four United States Supreme Court decisions (Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969); Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988); Morse v. Frederick, 551 U.S. 393 (2007)) have defined the contours of students’ free speech rights in the public schools. These cases have accepted the premise that students’ speech rights in the schools are not as a robust as the rights of adults or as robust as the speech that students can exercise away from school.  Unfortunately, a federal district court judge may have unraveled some of that jurisprudence in B.H. v. Easton Area School District, No 10-6283 (April 12, 2011). This case adjudicated the issue of whether middle school students can wear “I ♥ Boobies! (Keep a Breast)” bracelets at school. The court granted a preliminary injunction prohibiting middle-school officials from enforcing a ban against wearing the bracelets (at *39).

The facts begin with a legitimate concern about breast cancer.  Can teenage girls take steps that will “eradicate breast cancer by exposing young people to methods of prevention, early detection and support” (http://www.keep-a-breast.org/about/ (last visited May 31, 2011)? The Keep A Breast Foundation believes the answer to that question is yes, and it urges young women to conduct periodic examinations of their breasts. As part of its campaign against breast cancer the Foundation has marketed bracelets that read “I ♥ Boobies! (Keep a Breast).” The Foundation has also marketed its products at such events as Willie Nelson’s Thrown Down Tour of 2011 adding “i ♥ Boobies!” Cowboy Hats (http://www.keep-a-breast.org/blog/ (last visited May 31, 2011).

The Facts

B.H. and K.M., middle school students, purchased the “I ♥ Boobies! (Keep a Breast)” bracelets with the consent of their mothers prior to the start of the 2010-2011 school year. B.H. wore a bracelet to her middle school every day to show her support for breast cancer prevention. At first, school officials did not acknowledge the bracelets. However, officials’ attitude toward the bracelets changed before the school’s designated October “Breast Cancer Awareness Day.” By mid-September, seven or eight faculty members sought guidance from administrators about how to respond to the bracelets. On September 23, 2010, Mr. Viglianti, one of the school’s assistant principals, sent an email notice to the faculty instructing them to ask students to remove wristbands that have the word “boobies” on them. He further instructed the faculty and staff to let the students know that they can wear pink instead on October 28th as a way to honor and support Breast Cancer Awareness Month (At *9). The email was resent on October 27, 2010 and Mr. Viglianti read a prepared statement describing the ban.  The next morning the ban was broadcast to all by a student using the school’s TV station.  The court emphasized that the school’s announcement used the word “boobies.” (At *10).

On October 27, 2010, B.H. wore her bracelet to school.  A cafeteria monitor noticed the bracelet and asked her to remove it.  B.H. refused and the monitor escorted her to the office. After speaking with an administrator, B.H. removed the bracelets; and she was allowed to return to the cafeteria without punishment. The next day, Breast Cancer Awareness Day, B.H. and two other girls wore their bracelets to school. When confronted and asked to remove the bracelets, B.H. and K.M. refused.  The third student, R.T. agreed to remove the bracelet stating that she understood why the school instituted the ban –some boy or boys “had been approaching girls and commenting ‘I love your boobies’ or ‘I love boobies.’” (At *14). B.H. and K.M brought suit alleging that their First Amendment right to free speech was abridged by the ban on the “I ♥ Boobies! (Keep a Breast)” bracelets. They sought a preliminary injunction enjoining the school from enforcing its ban. (At *16).

Free Speech Analysis: Offensive Language

The court focused on two Supreme Court cases--Tinker and Bethel--to anchor its analysis. The court’s application of Tinker is straightforward.  The court found “there were no incidents presented to the Court of any disruption prior to the School’s bracelet ban.” (At *36). At the most there was only a general fear of disruption, well below the standard that Tinker required--a material and substantial disruption. Thus, the defendant school district failed to sustain its reliance on Tinker as a rationale for banning the bracelets.

Judge McLaughlin turned to the core analysis of her opinion when she applied the Supreme Court’s Bethel decision to the Easton Area School District case. In our opinion, Judge McLaughlin misapplied the Supreme Court’s holding in Bethel. In Bethel, the Supreme Court ruled that schools may prohibit speech that is “lewd, vulgar, indecent, or plainly offensive.” (Citing Bethel at 684-86, at *18). The B.H. court implicitly removed offensive speech from the Supreme Court’s list of student speech that can be proscribed. The court focuses its analysis on whether the bracelets were lewd or vulgar and did not analyze whether the bracelets were offensive as the word “offensive” is properly understood.  For example, at page *28, the court spoke of a school’s responsibility to protect from students from “lewd or vulgar speech”; and at page*29, the court acknowledged that a school has the authority to ban lewd or vulgar speech under Fraser.

What happened to offensive language--another category of student speech that can be banned under Bethel? The court essentially dismissed offensive student speech as a category of speech that can be banned under Bethel by using two lines of argument.  First, the court cited a Third Circuit decision, Saxe v. State College Area School District, 240 F.3d 200 (3rd Cir. 2001). In that case, the constitutionality of a school’s anti-harassment policy was reviewed.  The Third Circuit Court of Appeals ruled that Bethel “permits a school to prohibit words that ‘offend for the same reason that obscenity offends.” (Citing Saxe at 213, at *21-22).

Furthermore, the court in B.H. cited Morse to support its novel interpretation of the “offensive” standard. Chief Justice Roberts in Morse cautioned against the expansive use of the offensive standard when he wrote that Morse “should not be read to encompass any speech that could fit under some definition of ‘offensive.’” (Citing Morse at 409, at *24).

The thrust of Tinker and Bethel is that certain speech that would be allowed by adults or used outside of a school context is unprotected inside the schoolhouse gate. These cases add to the well-known restrictions on speech such as obscenity and defamation. If offensive speech is conflated with obscenity, as the B.H. has apparently done, then offensive speech must be obscene speech before school authorities can ban it.  If the Court in Bethel had meant for offensive language to mean obscene speech, it did not need to mention “offensive” speech as a distinct form of student speech that a school can sanction.

Furthermore, a review of the Bethel Court’s reference to “offensive” speech does not support the B.H. court’s interpretation of “offensive”. In Bethel, the Supreme Court observed, “Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.” (At 683). Clearly, the Court included offensive student speech in an independent category of speech that a school can censor in addition to speech that is vulgar, lewd, or indecent.

A Matter of Public Concern

While the District Court likely reduced the reach of Bethel by virtually eliminating the use of offensive language as a standard in student free speech, the court appears to cabin the “I ♥ Boobies! (Keep a Breast)” speech within the context of a matter of public concern. As the court noted, the phrase is presented “in the context of a national breast cancer awareness campaign.” (At *31). Furthermore, the court opined, “If the phrase “I ♥ Boobies! (Keep a Breast)” appeared in isolation and not within the context of a legitimate, national breast cancer awareness campaign, the School District would have a much stronger argument that the bracelets fall within Fraser.” (Id.) In other words, the court appears to suggest that the bracelets are protected speech because they are part of the public discussion of breast cancer and might not be protected if they were worn at any other time. Tying student speech to a matter of public concern appears to be a new element in the judicial analysis of the free speech rights of students. A matter of public concern is part of teacher free speech (Connick v, Myers, 461 U.S. 138 (1983)); but courts have never applied the “public concern” standard to student speech cases.

Conclusion

In the B.H. case, a federal judge appears to have equated “offensive” speech with obscenity for purposes of applying the Bethel standard to student speech.  We think this interpretation of “offensive” is incorrect and that the Supreme Court intended to allow schools to sanction speech that is “offensive” in the sense of being uncivil or inappropriate language in civil discourse.

Of course, the phrase, “I ♥ Boobies! (Keep a Breast)” bracelets, worn in the context of a breast cancer awareness event is only mildly offensive under any reasonable standard, and the B.H. court is certainly correct in concluding that the phrase is not lewd or profane. Nevertheless, school authorities reasonably concluded that the phrase was inappropriate in a middle-school environment, where courts have given educators the authority to define what constitutes appropriate civil discourse.  We believe the B.H. court erred in substituting its notion of “offensive” for that of local school authorities.