The U.S. Supreme Court is being asked by the Easton Area School District in Pennslyvania to rule on the claim that the “I ♥ Boobies” bracelet supporting breast cancer awareness is lewd and should be banned from schools. Both the federal district court and the U.S. Court of Appeals for the Third Circuit have ruled in favor of the parents’ holding that the bracelets are an acceptable expression of student free speech rights and the school may not ban them from being worn.

In Tinker v. DeMoines, 393 U.S. 503 (1969), the Supreme Court ruled that students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. At issue was the right of students to wear black armbands in protest of the Vietnam War. These armbands did not have any writing on them, unlike the bracelets involved in this latest test of student free speech rights. The court viewed the armbands in Tinker as a passive, silent expression of speech that was given constitutional protection unless there was substantial disruption to the school environment. The district court and Third Circuit have held that Tinker is controlling, as the school was unable to demonstrate that the bracelets caused a substantial disruption. Therefore, a student’s right to wear these bracelets is a constitutionally protected form of freedom of expression.

The school, however, has argued that the court should have followed precedent set under another seminal free speech case involving students and school, Bethel v. Fraser, 478 U.S. 675 (1986). In Bethel, a student gave a sexually explicit speech about a candidate running for council elections. The audience at this school assembly was composed of mostly 14-year-olds. After the speech was given, the school suspended the student for using lewd, vulgar, and obsecene language. The Supreme Court ultimately ruled that the lewd, vulgar, and obscene speech given by this student was not protected by the U.S. Constitution and the school had the authority to suspended him for his misconduct.

The Easton Area School District is arguing that the “I ♥ Boobies” bracelets are sexually explicit and lewd and the Bethel precedent should apply here as well. This case provides the Supreme Court with the opportunity to revisit the parameters of a student’s free speech rights in school with the changes in society norms since the Tinker and Bethel rulings. Given the more conservative makeup of the Supreme Court, will the Third Circuit ruling be reversed? Please tune in to our SchoolNET Blog for developments on this exciting free speech issue.

Andrew J. Freedman is a partner in the Education Practice at Hodgson Russ LLP. You can reach him at .