Three national education groups are asking the US Supreme Court to overturn a lower court decision that upheld the rights of students to wear “I [heart] Bobbies” breast cancer awareness bracelets. The National School Boards Association, the National Association of Secondary School Principals and the School Superintendents’ Association have filed a friend-of-the-court brief on the side of the Easton Area School District in what is shaping up to be a significant decision concerning students’ right of free speech in a school setting.
The Pennsylvania school district last month appealed the decision of the Third Circuit Court of Appeals, which held that the bracelets worn by middle school students were not plainly lewd and were a form of commentary on a social issue that was not disruptive to the school environment. The court majority held that a school’s leeway to categorically restrict ambiguously lewd speech ends when that speech could also plausibly be interpreted as expressing a view on a political or social issue. In contrast, school administrators viewed the breast cancer bracelets as vulgar and inappropriate for middle school students.
In its friend-of-the-court brief, the education groups maintain that the Third Circuit court misinterprets prior Supreme Court decisions and creates a new standard for the regulation of student speech in a school setting. “If left undisturbed, this new standard for analyzing regulation of student speech will leave school officials powerless when students push the envelope by including a sliver of political speech in an otherwise inappropriate image or phrase,” the brief says.
Not surprisingly, the education groups seek to distinguish free speech in a school setting, where the competing interests of order and education can compete and conflict with free speech rights. The brief notes that, “these messages may be protected speech in the mall, but are often inappropriate in a respectful, civil school environment.”
The students at the center of the appeal are being represented by the ACLU. Their brief in response to the school district’s appeal is due February 5th. It may well be that 2014 brings a new standard of evaluating student speech for school districts.