After breast cancer claimed the lives of Kayla Martinez’s aunt and a close family friend of Brianna Hawk’s, the middle schoolers each began wearing a pink silicone bracelet with “I [heart] Boobies!” written across it in big white letters. It was fall 2010, and many students at their school in Pennsylvania’s Easton area district were displaying the wristbands, part of a nationwide campaign by the Keep a Breast Foundation to spark breast cancer awareness among young people. However, by the end of October, the administration had declared the bracelets off-limits, saying the message violated the school’s dress-code policy because it “conveyed a sexual double entendre.”
On Breast Cancer Awareness Day, many students and teachers donned pink T-shirts, and Martinez, then 12, and Hawk, then 13, wore their bracelets despite the ban. A security guard noticed the girls’ bracelets and escorted the students to the office, where an assistant principal asked them to remove the wristbands. The girls refused. Administrators accused Martinez and Hawk of “disrespect,” “defiance,” and “disruption” and assigned them a day and a half of in-school suspension and barred them from attending a school dance.
On November 15, the American Civil Liberties Union (ACLU) of Pennsylvania filed a complaint against the district on the girls’ behalf, claiming that by prohibiting the bracelets, the district had violated the right to free expression under the First Amendment and that suspending Martinez and Hawk was “unconstitutional.” ACLU attorney Mary Catherine Roper asked the federal district judge to issue a preliminary injunction (a ruling made before the end of a trial) to force the school to lift the ban on the girls.
At an evidentiary hearing in December, middle school principal Angela DiVietro explained that prohibiting the bracelets “makes a statement that we as a school district have the right to make discretionary decisions on what types of things are appropriate and inappropriate for our schoolchildren.”
Did the school violate the students’ right to free speech by banning the bracelets? You be the judge.
In April 2011, the district court granted the preliminary injunction, which meant the girls could wear the bracelets to school. The school district appealed, citing two previous Supreme Court decisions that supported its right to ban. The first decision held that the First Amendment doesn’t prevent administrators from regulating speech—like the word boobies—that they have “reason to anticipate … would substantially interfere with the work of the school.” The second decision held that the school board has the right to determine if student speech could be seen as obscene. “We thought this was a no-brainer,” says the school district’s attorney John E. Freund III.
But in August 2013, the U.S. Court of Appeals for the Third Circuit upheld the injunction. It was the first time a federal court of appeals ruled that student speech, even if it contains possibly lewd language, is protected as long as it comments on a political or social issue. The district tried to appeal in March 2014, but the Supreme Court refused to hear the case.
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