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No First Amendment right to wear 'Boobies' bracelets at school, Indiana court says

August 23, 2013

INDIANA — Students at an Indiana school district do not have a First Amendment right to wear breast cancer awareness bracelets proclaiming “I <3 boobies (Keep a Breast),” according to a ruling handed down Tuesday.

North Side High School of the Fort Wayne Community Schools district of Fort Wayne, Indiana, has banned such bracelets since 2010, after the bracelets caused problems among students, according to Judge Joseph Van Bokkelen’s opinion. School officials decided “that the bracelet’s terminology was ‘offensive to women and inappropriate for school wear’” after a student was harassed, according to the opinion.

A female student and daughter of a breast cancer survivor wore her “I <3 boobies” bracelet from December 2011 until March 2012, when an administrator took it away, the opinion states. That student, represented by the American Civil Liberties Union of Indiana, sued her school district and lost Tuesday.

“Running one of the largest school corporations in the state is a difficult task,” Van Bokkelen’s opinion states. “The last thing Fort Wayne Community Schools needs is for an outsider from a courthouse to scrutinize every move in the schoolhouse. The evidence in the record demonstrates that Defendant prohibited the bracelet based on a reasonable belief that it was lewd, vulgar, obscene or plainly offensive. Therefore, this Court must defer to Defendant’s judgment and deny Plaintiff’s motion for a permanent injunction.”

In a statement to the media, school district officials said they “are pleased with the court's decision” and “have always contended our actions were appropriate.”

The American Civil Liberties Union of Indiana Legal Director Ken Falk said the ruling was disappointing. There is no word yet on whether his client will appeal.

Van Bokkelen’s ruling runs counter to an opinion issued by the Third Circuit U.S. Court of Appeals earlier this month that said students do have a First Amendment right to wear the bracelets. The Third Circuit ruling applies only in Pennsylvania, New Jersey and Delaware.

Van Bokkelen disagreed with the principles that the Third Circuit used to reach its decision, stating that, “the Third Circuit upheld the district court’s conclusion only after crafting a brand new rule.” The Third Circuit said that schools may not censor speech about political or social issues just because it “has the potential to offend.”

Van Bokkelen also stated that, “of the three other federal courts to examine this bracelet, only the Pennsylvania District Court concluded that it was unreasonable for an objective observer to interpret the bracelet’s message as vulgar.”

By Sara Tirrito, SPLC staff writer. Contact Tirrito by email or at (703) 807-1904 ext. 124.

© 2013 Student Press Law Center

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