An “I ♥ Boobies” decision goes the other way; school ban on bracelet upheld

J.A. v. Fort Wayne Cmty. Sch., No. 12-155 (N.D. Ind. Aug. 20, 2013)

Abstract: A federal district court in Indiana denied a student’s request for a declaratory judgment and permanent injunction that would have allowed her to wear a cancer awareness bracelet bearing the caption “I ♥ Boobies” at school, and entered judgement for the school district.  The court concluded that the school district’s ban on the bracelets was justified under the standard articulated in Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).  The court held that the school district “made an objectively reasonable decision in determining that the bracelet was lewd, vulgar, obscene or plainly offensive,” and therefore its ban was constitutional.

The court rejected the recent decision by the U.S. Court of Appeals for the Third Circuit in B.H. v. Easton Area Sch. Dist., No. 11-2067, 2013 U.S. App. LEXIS 16087 (3d Cir. Aug. 5, 2013), striking down a similar ban on the bracelets as a violation of a student’s right to free speech.  In B.H., an en banc opinion, the majority rested its holding on a conclusion that Morse v. Frederick, 551 U.S. 393 (2007), “establish[ed] new limits on a school’s ability to regulate student speech commenting on political or social issues.”

Facts/Issues: The Fort Wayne Community Schools district (FWCS) prohibits students from wearing “inappropriate” plastic bracelets that contain “messages that are solicitous, profane, [or] obscene.”  The policy is strictly enforced, and administrators confiscate banned bracelets.  In 2010, school administrators banned “I ♥ Boobies” bracelets, concluding that the terminology was “offensive to women and inappropriate for school wear,” making the bracelet “lewd, vulgar, obscene, solicitous, and/or plainly offensive speech.”

After the ban, FWCS confiscated a number of “I ♥ Boobies” bracelets across the school system.  Student J.A. started wearing the bracelet to school in December 2011.  J.A. received her bracelet as a gift from her mother, who is a breast cancer survivor.  The outside of the bracelet reads “”I ♥ Boobies (Keep a Breast).”  On the inside of the bracelet, the website of the Keep a Breast Foundation is printed, along with the inscription ““art. education. awareness. action.””  The Foundation states on its website that it uses the phrase “I ♥ Boobies”” to “speak to young people in their own voice.”   J.A. wore the bracelet for three months before a school administrator confiscated it in March 2012.

J.A. filed suit against FWCS in federal district court seeking a declaratory judgment and permanent injunction allowing her to wear the bracelet at school. She argued that the “bracelet promotes a positive breast cancer awareness message and that the school’s ban violates the First Amendment’s free speech protections.”  FWCS relied on” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) in defending the ban.

Ruling/Rationale: The district court denied J.A.’s motion for a declaratory judgment and permanent injunction, and entered judgment for FWCS.

The school district argued that the ban was constitutional under Fraser, and the court agreed.  Fraser established a school district’s right to ban speech that is lewd, vulgar, obscene, or plainly offensive.  Fraser further held that the authority to determine whether speech is lewd, vulgar, obscene, or plainly offensive rests with the school board.  Under Fraser, courts should defer to schools when they determine that student speech is lewd or vulgar. Deference is appropriate because educators, not judges, best know the sensibilities of the students, community standards, and the important contextual variables:

For these reasons, school officials who ““know the age, maturity, and other characteristics of their students”” are in a much better position to decide whether speech is vulgar than judges who are ““restricted to a cold and distant record.””  B.H. ex rel. Hawk v. Easton Area Sch. Dist., No. 11-2067, 2013 U.S. App. LEXIS 16087, at 34 (3d Cir. Aug. 5, 2013). Judges are ““outsiders”” who do not have the experience and competence to “”tell school authorities how to run schools in a way that will preserve an atmosphere conducive to learning.””  Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist. No. 204, 523 F.3d 668, 671-672 (7th Cir. 2008); see also Brandt v. Bd. of Educ. of City of Chi., 480 F.3d 460, 467 (7th Cir. 2007) (“”[Schools] have an interest of constitutional dignity in being allowed to manage their affairs and shape their destiny free of minute supervision by federal judges.””).

The court stated that the dispositive question is “whether an objective observer could reasonably interpret the slogan as lewd, vulgar obscene, or plainly offensive.” Phrasing the issue this way gives school officials the deference to which they are entitled.  As a result, the subjective intent of the speaker is irrelevant.

The district court declined to adopt the reasoning of the Third Circuit in B.H. v. Easton Area Sch. Dist., No. 11-2067, 2013 U.S. App. LEXIS 16087 (3d Cir. Aug. 5, 2013).  In B.H., the Third Circuit modifed the traditional Fraser standard, holding “that a school can only limit student speech under Fraser if the speech can reasonably be interpreted as either: (1) plainly lewd, or (2) ambiguously lewd and cannot plausibly be interpreted as commenting on political or social issues.”  The Third Circuit arrived at this test by grafting Justice Alito’s concurring opinion from Morse v. Frederick, 551 U.S. 393 (2007), onto the Fraser standard.

Rather than following B.H., the court found itself in agreement with the Seventh Circuit’s decision in Nuxoll v. Indian Prairie Sch. Dist. No. 204, 523 F.3d 668 (7th Cir. 2008), which “expressly rejected the argument that [Justice] Alito’s opinion controls Morse.”  The court also noted that eight other appellate courts have adopted the rule expressed by the majority opinion in Morse, rather than Justice Alito’s concurrence.  The court concluded: “The majority’s opinion in Morse did not establish new limits on a school’s ability to regulate student speech commenting on political or social issues.”

“Therefore, the bracelet’’s commentary on social or political issues does not provide additional protection under the First Amendment. This Court will ask solely whether the school made an objectively reasonable decision in determining that the bracelet was lewd, vulgar, obscene or plainly offensive.”

The court determined that the word “boobies” is sometimes vulgar and that the phrase “I ♥ Boobies”” may be lewd or vulgar.  The court, therefore, concluded there was “evidence that a reasonable observer could interpret the bracelet as being vulgar.”  The court then evaluated the age and maturity of the students at J.A.’s school, and found that the “evidence in the record reveals a low maturity level at the school.”  It noted that a “number of students wore other bracelets with plainly lewd and obscene words written on them.”  In addition, the record contained several instances of student misconduct precipitated by the bracelets. The court determined that the “school could therefore reasonably conclude that the bracelet contained sexual innuendo that was vulgar within the context of J.A.’s school.”

The district court stressed that “[w]hen confronted with ambiguously vulgar slogans, federal courts have sided with the school administrators’ decision to ban them.”  It pointed out that if the court adopted J.A.’s analysis and issued the injunction, a school official’s ability to “regulate speech that is lewd but supports a noble cause will be limited.”  It concluded: “School officials, who know the age, maturity, and other characteristics of their students better than federal judges, are in a better position to decide whether to allow these products into their schools. Issuing an injunction would take away the deference courts owe to schools and make their job that much harder.”

J.A. v. Fort Wayne Cmty. Sch., No. 12-155 (N.D. Ind. Aug. 20, 2013)

[Editor's Note: In May 2012, Legal Clips summarized an article in the Fort Wayne Journal Gazette providing background on J.A.'s suit against FWCS.  

In August 2013, Legal Clips summarized the Third Circuit's decision in B.H. v. EASD, holding that the school district’s ban on “I ♥ boobies” bracelets violated students’ First Amendment free speech rights.  The Third Circuit’s majority concluded that the ban could not be justified under either the Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), substantial disruption standard or the Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), vulgar, lewd, profane, or plainly offensive speech standard.]

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