Cancer, the First Amendment & I [Heart] Boobies Bracelets in Schools

BCRibbonOctober is Breast Cancer Awareness month. One would not expect Breast Cancer Awareness to intersect with the First Amendment, but there have been multiple cases on the issue involving public school students.

I lost my grandmother to breast cancer. My grandmother was a dynamic and elegant woman who was Ms. Sioux City before World Ward II. Grammy was also the resolute country school teacher from Iowa who taught my dyslexic brain how to read using building blocks.

My grandmother dealt with school children who left a live snake in her desk. She picked the evil creature up by its head, held it up in front of the class and asked, “Who does this belong to?”

No student messed with her after that.

Today’s teachers have many other challenges that range in complexity from learning disabilities to broken homes to students who cannot speak English. One of the challenges today are children who wear “I ♥ Boobies! (Keep A Breast)” bracelets to school that have caused three different First Amendment lawsuits in Federal Court.

Is wearing such a bracelet to school a good idea? I do not think so. It is only done for shock value by children in my opinion. Moreover, anyone who wore such a bracelet to work would find themselves facing sexual harassment and hostile work environment allegations. The same would hold true in many schools.

I can only imagine what my German-Irish grandmother would say to a student who wore a “I ♥ Boobies! (Keep A Breast)” bracelet. However, we do know what three different Federal Courts have held on the issue of student First Amendment Rights at a public school.

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Back to School

First Amendment rights and public school students have provided fascinating case law of students who wear black armbands to school in protest to more provocative statements.

Here is an overview of the legal standards that apply to students and their First Amendment Rights:

Students do not check their First Amendment rights at the door when they enter the school. Tinker v. Des Moines Indep. Comty. Sch. Dist., 393 U.S. 503, 506, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969). However, the First Amendment does not compel schools to “surrender control of the American public school system to public school students.” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986) (quoting Tinker, 393 U.S. at 526 (Black, J., dissenting)). The students’ rights are curtailed by the schools’ “countervailing interest in teaching students the boundaries of socially appropriate behavior,” Fraser, 478 U.S. at 681, and to protect “students from offensive speech.” Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist. No. 204, 523 F.3d 668, 671 (7th Cir. 2008). This interest flows from the schools’ responsibility to teach students the “‘habits and manners of civility’ essential to a democratic society.” Fraser, 478 U.S. at 681.

J.A. v. Fort Wayne Cmty. Sch., 2013 U.S. Dist. LEXIS 117667 at *5-6 (N.D. Ind. Aug. 20, 2013).

The United States Supreme Court held in Fraser that “essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech.” Fraser, at 683. Moreover, the school board has the authority to determine what manner of speech is inappropriate. Fraser, at 683-85.

Schools under Tinker can restrict speech that is reasonably expected to substantially
disrupt the school. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969).

The East District of Pennsylvania: The Bracelet is Not Lewd

The Court in B. H. v. Easton Area Sch. Dist., held that the ban on the “I ♥ Boobies! (Keep A Breast)” bracelets was NOT an objectively reasonable exercise of a public school’s authority to ban lewd or vulgar speech under Fraser. B. H. v. Easton Area Sch. Dist., 827 F. Supp. 2d 392, 405 (E.D. Pa. 2011).

The Easton Court summarized the test in Morse v. Frederick, 551 U.S. 393, 127 S. Ct. 2618, 168 L. Ed. 2d 290 (2007) that apply to schools as follows:

(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. Because the bracelets here are not plainly lewd and because they comment on a social issue, they may not be categorically banned under Fraser.

The District Court held, and the En Banc order affirmed, that the school district failed to show the bracelets threatened to substantially disrupt the school under Tinker. B.H. v. Easton Area Sch. Dist., 2013 U.S. App. LEXIS 16087 at *4 (3d Cir. Pa. Aug. 5, 2013). Effectively, the only disruption that was argued were the two students refusing to take off the bracelets (If we also ignore the Federal lawsuit and attorney’s fees).

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The Easton Court held the bracelet were not plainly lewd, because teachers had to seek guidance on how to respond to students wearing the bracelets. B.H. v. Easton Area Sch. Dist., 2013 U.S. App. LEXIS 16087 at *69 (3d Cir. Pa. Aug. 5, 2013).

In the words of Judge Brooks Smith, “Indeed, the term ‘boobie’ is no more than a sophomoric synonym for ‘breast.'” Id., at *70.

Meanwhile, in the Northern District of Indiana: The Bracelet is Lewd

The Court in J.A. v. Fort Wayne Cmty. Sch., held that the school’s interpretation of the bracelets as lewd or vulgar was reasonable. J.A. v. Fort Wayne Cmty. Sch., 2013 U.S. Dist. LEXIS 117667 (N.D. Ind. Aug. 20, 2013).

The Defendant school first encountered the bracelet when a male student wearing one harassed a female student. The school determined that the bracelet’s terminology was “offensive to women and inappropriate for school wear” making the bracelet “lewd, vulgar, obscene, solicitous, and/or plainly offensive speech.” Those wearing bracelets have had them confiscated. Fort Wayne, at *3-4.

The Plaintiff wore the banned bracelet for three months before a school administrator confiscated it.  Id.

The Court determined that the bracelet “falls into a gray area” between being “plainly lewd and merely indecorous.”Fort Wayne, at *18.

Federal Courts defer to school administrators when there are ambiguously vulgar slogans. For example, a Federal Court in Massachusetts upheld a ban on the phrase, “See Dick Drink. See Dick Drive. See Dick Die. Don’t be a Dick.” J.A. at *19, citing Pyle ex rel. Pyle v. S. Hadley Sch. Comm., 861 F. Supp. 157, 159 (D. Mass. 1994) vacated on other grounds Pyle v. South Hadley Sch. Comm., 55 F.3d 20, 21 (1st Cir. Mass. 1995).

The Court explained that the J.A. facts were distinct from the Easton case. The Court explained:

In that case, administrators waited several months to ban the bracelets, and did so even though they had not “heard any reports of disruption or student misbehavior linked to the bracelets.” Easton, 827 F. Supp. 2d at 397. There was also evidence that the administrators did not “actually consider the word boobies to be vulgar.” Id. at 407. In contrast Defendant responded swiftly to a reported disruption caused by a student using the bracelet’s slogan in an offensive manner. Additionally, the record indicates that they consistently enforced their ban, including confiscating similar bracelets such as one that said “Save the Boobs.”

The Court explained its holding as follows:

If the Court adopted Plaintiff’s analysis and issued an injunction, Defendant’s ability to regulate speech that is lewd but supports a noble cause will be limited. As the dissent in Easton noted, this bracelet is not the only one with a slogan that toes the line between mildly inappropriate and vulgar in the name of supporting cancer awareness. One organization the dissent highlighted was The Testicular Cancer Awareness Project, which sells bracelets imprinted with the words of its website “feelmyballs.com.”  B.H. 2013 U.S. App. LEXIS 16087 at *123-24 (Hardiman, J., dissenting). Defendant has dealt with this challenge first hand. One of the bracelets confiscated by the school used the slogan “Save the Boobs.” If the “I ♥ boobies” bracelet is allowed it is difficult to articulate a principle that distinguishes it from “feel my balls” or “Save the Boobs.” School officials, who know the age, maturity, and other characteristics of their students better than federal judges, are in a better position to decide whether to allow these products into their schools. Issuing an injunction would take away the deference courts owe to schools and make their job that much harder.

Fort Wayne, at *19-20.

Should We Make Fun of Serious Diseases?

The proponents of the “I ♥ Boobies! (Keep A Breast)” state they are speaking to women between the ages of 13 to 30 in language that they can relate to. They have a very noble goal of promoting women’s health.

I have done a substantial amount of volunteering with young adults. I have learned the best way to address a serious issue with a young adult is to actually treat them like a young adult. I do not believe getting women to wear “I ♥ Boobies! (Keep A Breast)” is consistent with treating the issue, or the intended audience, seriously.

As the dissent in Easton noted, one only needs to look at the Testicular Cancer Awareness Project’s bracelet campaign to see how we can race to the bottom in the name of cancer awareness.

Cancer is a horrible disease. Everyone should be educated on how they can detect threats to their health. This is often a challenge, because I have yet to meet a woman who looks forward to a mammogram or man who does not dread a prostate exam. Moreover, any procedure with “oscopy” in the name frightens people, not just because of what the procedure is, but what it could find.

I am reminded of the speeches of Brutus and Mark Anthony in Shakespeare’s Julius Caesar. Brutus addressed the crowd from up high, speaking down to them in “their language.” Mark Anthony walk among the people and addressed them as equals.

Telling teenagers “I ♥ Boobies!” for breast cancer awareness is speaking down to youth like Brutus. I would hope parents and educators take a lesson from Mark Anthony in talking with their children about healthcare.

You Need More Than A Bracelet

I have never been a fan of wearing a bracelet to show my support in helping those with cancer. I believe actions speak louder than words.

Two of the three women who raised me died horribly from cancer. I have crystal clear memories of closing my mother’s lifeless eyes after a brutal battle with lung cancer. I can never forget taking her home after the doctor appointment where hope was ruled out. This was a woman who was among the first women to be a paramedic. Her training involved running up four flights of stairs with a guy over her shoulder. My mother actually did wear combat boots. Only a fool would have doubted her strength of character.

But cancer is not a fool, it is a disease.

My mother had the look of total terror on her face from the knowledge that there was nothing to save her. Tears streamed down her face and her expression is burned into my memory. I have never seen pure fear like that before. I do not need to wear a bracelet to remember that.

Others, however, wear cancer bracelets like they are an Ichthys. It gives them a sense of community. Many find strength in that.

Helping others in need should be encouraged over simply wearing a bracelet. Luckily, there are many people who answer the call to help those in fighting cancer.

I was impressed with the professionals and volunteers at Stanford. Whether it was a kind volunteer in a red coat, or a person playing a harp, guitar or piano, there was always compassion for those in need.

My aunt took care of my mother in the last 18 months of her life. My aunt had a front row seat to her sister’s decline. Sadly, this was not the first time my aunt had seen a family member’s life fade away, as my aunt also on the front line caring for her own mother in the last months of her mother’s life.

Today my aunt volunteers with both Hospice and an organization called Drivers for Survivors. “Drivers” are volunteers who take cancer patients to their chemotherapy or radiation treatments, because they have no one else who can help them. The last thing someone with cancer needs is an outrageous taxi bill every time they need chemo. Those who volunteer to drive those to cancer treatments are truly doing God’s work.

Lasting Impressions of My Grandmother

Grammy002My grandmother had all the makings of a saint. She raised two daughters and spoiled three grandsons.

My grandfather retired from dentistry early in 1984 because he and my grandmother wanted to volunteer to help others. They spent a year down at an Apache Native American Reservation, with my grandfather setting a record number in making dentures and my grandmother working in Headstart.

She was diagnosed with breast cancer in 1986. She started a super-human treatment process that included flying back to New York from California for what was then revolutionary treatments. Every day she took over 150 vitamins and gave herself a gallon coffee enema twice a day.

There was also a lot more.

Most people would surrender to death with such a daily routine.

My grandmother endured for seven years.

My grandmother knew she was dying in the fall of 1992.  She gave her credit cards to her daughters in November with the marching orders “to go big for Christmas.”

Her daughters delivered.

Grammy grew up in the Great Depression on a farm in Iowa. She understood hardship. She understood working hard on the farm and the importance of a hot meal. She also knew kindness and told how her own grandfather sneaked roller skates passed her as a Christmas gift during the dark days of the Depression.

She also enjoyed throwing blow out birthdays, Thanksgivings and Christmas celebrations. The woman made it an art form. There are photos of her sitting proudly in the living room with gleeful children tearing apart wrapping paper on Christmas Eve. I think she considered it a matter of honor to ensure her grandchildren; grandnephew and grandniece had happy childhoods.

My grandmother excelled at kindness and making anyone feel loved. Whether it was helping a former convict get their life back together or inviting others into a family that had none. The woman was the living embodiment of virtue, kindness and the resolution to take action.

Her ability to take positive action knew no limits. I had spinal meningitis when I was five years old.  She visited my hospital room daily, each time bringing a Hot Wheels car.

I was hospitalized for an extended period in 1990 from Crohn’s Disease. My grandmother had a tumor removed from her skull in the same hospital. My grandfather brought her by my room in a wheelchair to visit as soon as she was able.

That was who she was.

Watching cancer destroy her put everyone she loved through an emotional meat grinder. The beauty queen’s body was broken and her mind shattered as cancer overcame her.

She had forgotten I even existed.

I am fairly certain my grandmother would not look kindly on any bracelet with “boobies” on it. However, I am confident she would be extremely proud of her daughter for taking cancer patients to their chemotherapy treatments.

It is important to be a force for good and help those in need. That is probably the biggest lesson I learned from my grandmother and the best way to honor those who we have lost: help others live.

 

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Josh Gilliland
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.