A federal judge must now decide whether breast cancer fundraising bracelets that proclaim "I (heart) boobies!'' can be banned by eastern Pennsylvania school as a sexually charged double entendre or should be allowed as free speech on the part of two girls threatened with discipline for wearing them.
Mary Catherine Roper, staff attorney for the American Civil Liberties Union of Pennsylvania, argued Friday that the Easton Area School District was improperly seeking "unreviewable and unfettered discretion'' on interpreting the First Amendment for schoolchildren.
"This circuit has never paid that level of deference to school decisions,'' Roper told U.S. District Judge Mary McLaughlin in Philadelphia. "... If they get that discretion, then all of a sudden, they have carte blanche.''
Roper also said that eighth-graders Brianna Hawk, 13, and Kayla Martinez, 12, did not intend the message to be sexual. She said the two could still face discipline if they lose their request for a preliminary injunction to lift the district's ban on the bracelets and could be barred from attending a school dance this year.
School district solicitor John Freund, however, argued that what mattered was not the intent of the students but the community's perception and the context of the message. He said testimony from administrators showed that other students saw a sexual double entendre in the bracelets' message, and stressed that the district did not seek to ban the message but simply the offensive phrase.
"The principal counseled these girls about other ways to express the message,'' he said. "... They could have done anything that did not make a sexual allusion to a body part.''
The attorneys cited decisions by the U.S. Supreme Court and lower courts on student free speech and the right of school administrators to restrict it in the interest of maintaining order in the classroom.
Roper said the school district had not shown that the bracelets had caused a disruption that was beyond the ability of administrators to handle with normal discipline.
"A couple of remarks by boys about girls' boobies does not constitute a substantial and material disruption. That's a Tuesday,'' Roper said. She compared banning the bracelets because of one word to banning certain colors just because they are sometimes associated with gangs.
Freund, however, said some courts have allowed schools to ban clothing with a double entendre even if it promotes a good cause.
"It's not the word boobies that's the problem,'' Freund said. "It's the entire sentence that is not appropriate in a school environment.''
The ACLU is seeking a temporary injunction to overturn the bracelet ban while the lawsuit proceeds.
Martinez, who wore four "I Heart Boobies'' bracelets on her wrists at the hearing, said she was a bit overwhelmed about all the controversy, but felt the cause was just.
"I think the school is taking the bracelets and giving them a different meaning,'' she said, adding, "I think this case is giving more attention to the bracelets and its message.''
