This week a federal district court judge denied a request by the ACLU of Wisconsin and cooperating attorneys to end a ban on “I ♥ Boobies! (Keep A Breast)” bracelets at the Sauk Prairie Middle School. The decision described “I ♥ Boobies!” as a “vulgar and sexually provocative statement” despite the educational context of the Keep A Breast foundation’s national campaign.
“Our middle school client is dedicated to effectively and constructively educating her peers about breast cancer,” said Attorney Tamara Packard. “It is disappointing that this decision will leave in place a ban on student speech that conveys our plaintiff’s belief that breast cancer is a critical women’s health issue of our time. The very purpose of the bracelets is to educate other young people about cancer prevention, testing, research and treatment.”
While the decision recognizes that students’ rights to free expression must be protected, it leaves too much discretion in the hands of school boards and administrators to punish controversial student expression by relying on a too-subjective and vague definition of “vulgar, offensive or inappropriate.” In the future, schools may punish students arbitrarily based on nothing more than a hypersensitive principal’s “I know it when I see it” notion of vulgarity rather than on an objective standard for free speech.
The Wisconsin suit was filed in September, 2011 on behalf of a middle school student at Sauk Prairie Middle School who along with many classmates wore an “I ♥ Boobies! (Keep A Breast)” bracelet to school for months without incident before the school district banned them. Last year, a federal district court in Pennsylvania stopped a ban on the bracelets and issued an opinion that the bracelets could not be considered lewd or vulgar. In B.H. v. Easton Area School District decision, as in the Sauk Prairie M. S., school officials failed to present evidence that the bracelets had or would cause a disruption at the school. The Pennsylvania case is facing an appeal by the school district. The ACLU of Wisconsin and the Sauk Prairie student plaintiff are evaluating their appeal options in the Wisconsin case.