B.H. ex rel. Hawk v. Easton Area Sch. Dist.

725 F.3d 293 (3d Cir. 2013)



The scope of a public school's authority to restrict lewd, vulgar, profane, or plainly offensive speech should be evaluated under the following framework: (1) plainly lewd speech, which offends for the same reasons obscenity offends, may be categorically restricted regardless of whether it comments on political or social issues, (2) speech that does not rise to the level of plainly lewd but that a reasonable observer could interpret as lewd may be categorically restricted as long as it cannot plausibly be interpreted as commenting on political or social issues, and (3) speech that does not rise to the level of plainly lewd and that could plausibly be interpreted as commenting on political or social issues may not be categorically restricted.


The “Keep A *** Foundation”, a youth-focused global *** cancer organization, tried to educate 13 to 31 year-old women about *** cancer. In order to achieve this end, it partnered with other merchants to co-brand products that raise awareness. One of  those products was a silicone bracelets of assorted colors emblazoned with "I Boobies! (KEEP A ***)" and "check yurself! (KEEP A ***)." As intended, the "I Boobies" initiative was a hit with young women. Two middle-school students - B.H. and K.M. – purchased the bracelets before the 2010-2011 school year. B.H., K.M., and three other students wore the "I boobies! (KEEP A ***)" bracelets at appellant Easton Area Middle School during the 2010-2011 school year. A few teachers, after observing the students wear the bracelets every day for several weeks, considered whether they should take action. In September, four or five teachers asked the eighth-grade assistant principal, Amy Braxmeier, whether they should require students to remove the bracelets. The seventh-grade assistant principal, Anthony Viglianti, told the teachers that they should ask students to remove "wristbands that have the word 'boobie' written on them.” Subsequently, the school administrators announced the ban on bracelets containing the word “boobies.” Despite the announced ban on the bracelet in question, B.H. and K.M. still wore theirs at school. Consequently, the school administrators punished B.H. and K.M. by giving each of them one and a half days of in-school suspension and by forbidding them from attending the Winter Ball. Through their mothers, appelleees B.H. and K.M. sued appellant School District under 42 U.S.C. § 1983. They sought a temporary restraining order allowing them to attend the Winter Ball and a preliminary injunction against the bracelet ban. During the evidentiary hearing conducted by the District Court, it was discovered that the school administrators’ reason for punishing B.H. and K.M. was because they believed that the bracelets alleged sexual innuendo. According to the School District's witnesses, the Middle School assistant principals had conferred and concluded that the bracelets conveyed a sexual double entendre that could be harmful and confusing to students of different physical and sexual developmental levels. After the evidentiary hearing, the District Court preliminarily enjoined the School District's bracelet ban. 


In a school speech case citing the First Amendment, can the public school administrators ban the students from wearing the bracelets with the words "I Boobies! (KEEP A BREAST)" printed on them?




The United States Court of Appeals noted that it was again being asked to find the balance between a student's right to free speech and a school's need to control its educational environment. Affirming, the Court held that, under the First Amendment, the students' bracelets could not be categorically banned by the school district. The bracelets were part of a nationally recognized breast-cancer-awareness campaign and were not plainly lewd and because they commented on a social issue. The Court also held that the school district failed to show that the bracelets threatened to substantially disrupt the school. The Court, in analyzing school speech precedent, noted that although students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," the First Amendment has to be applied in light of the special characteristics of the school environment" and thus students' rights to freedom of speech are not automatically coextensive with the rights of adults in other settings.

Click here to view the full text case and earn your Daily Research Points.