Court: Pa. school can't ban 'boobies' bracelets

AP

PHILADELPHIA (AP) — After years of litigation about students' free speech rights, a full U.S. appeals court ruled Monday that a Pennsylvania school district cannot ban "I (heart) Boobies!" bracelets.

The 3rd U.S. Circuit Court of Appeals rejected school district claims that the slogan — designed to promote breast cancer awareness among young people — is lewd. It also concluded that school officials didn't prove the bracelets were disruptive.

"Because the bracelets here are not plainly lewd and because they comment on a social issue, they may not be categorically banned," the court said in a 9-5 decision.

The ruling is a victory for two Easton Area School District girls who challenged the school rule in 2010 with help from the American Civil Liberties Union. Easton is one of several school districts around the country to ban the bracelets, which are distributed by the nonprofit Keep A Breast Foundation of Carlsbad, Calif.

ACLU lawyer Mary Catherine Roper said the ruling supports the rights of students to discuss important topics.

"It explicitly says school children talk about important things, and when they (do) ... that's the kind of speech we want to protect and promote," Roper said.

The teens, Brianna Hawk and Kayla Martinez, testified that they merely hoped to promote awareness of the disease at their middle school. They filed suit when they were suspended for defying the ban on their school's Breast Cancer Awareness Day.

The school district has since kept the litigation alive, appealing when a lower court judge ruled for the girls. District solicitor John Freund said he planned to comment on the decision later Monday.

He has argued that the bracelets have a sexual undertone that invites disruption in the classroom.

"Middle school is a witch's brew of hormones and curiosity," Freund has argued, while calling the bracelets "cause-based marketing energized by sexual double-entendres."

In a rare move, the entire 3rd Circuit elected to hear the school district's appeal in February rather than leave it to a three-judge panel.

During those arguments, Judge Dolores Sloviter said she did not see the slogan as sexual, and told the packed courtroom that she had once lost a colleague on the court to breast cancer.

In their dissent, five judges said the majority had wrongly reasoned that schools cannot limit student speech involving social commentary, even if it "could reasonably be deemed lewd, vulgar, plainly offensive, or constituting sexual innuendo."