Editor’s note: The authors were involved in the case B.H. v. Easton Area School District.

In B.H. v. Easton Area School District, 725 F.3d 293 (3d Cir. 2013), the U.S. Court of Appeals for the Third Circuit decided that, absent disruption, public school principals may not restrict “plausibly political” student speech or speech with a social message, unless the language is “plainly lewd.” Significantly, the Third Circuit held that the task of defining “plainly lewd” is for the courts, a limitation that the five dissenting judges did not believe was supported by Supreme Court jurisprudence. This article explains the importance, including the controversy, of the B.H. holding.

To provide a brief background, in the landmark case of Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), where students were disciplined for wearing black armbands in support of the Vietnam War, the U.S. Supreme Court held that student speech may not be restrained simply to avoid an uncomfortable viewpoint. Accordingly, the court required that a “substantial disruption,” or reasonable forecast of substantial disruption, must be shown before student speech may be subject to regulation by public school administrators. However, an exception to the Tinker substantial disruption standard was found in the case of Bethel School District v. Fraser, 478 U.S. 675 (1986). In Fraser, the U.S. Supreme Court held that a substantial disruption need not be found for public school administrators to regulate speech reasonably deemed vulgar, lewd, or obscene.

Supreme Court jurisprudence has distilled the following two main principles from Fraser: The constitutional right of public school students is not co-extensive with the rights of adults outside the public school; and the Tinker substantial disruption standard is not absolute. Based upon these principals, in the case of Morse v. Frederick, 551 U.S. 393 (2007), the U.S. Supreme Court held that, even absent disruption, speech reasonably viewed as promoting illegal drug use may be restrained by school district administrators.

In the case of B.H., the issue before the Third Circuit court was whether Fraser would apply to the Easton Area Middle School principal’s decision to ban purported breast cancer awareness bracelets containing the phrase “I ♥ boobies! (Keep A Breast).” Around mid-September 2010, following incidents of boys taking the “I ♥ boobies” bracelets as an entrée to discuss girls’ breasts, Easton Area Middle School principals instructed teachers that the “I ♥ boobies” bracelets violated the school district dress code, and thus must be banned. In October 2010, the Easton Area School District celebrated a district-wide Breast Cancer Awareness Day. On that day, middle school students R.T., B.H. and K.M., in deliberate defiance of the ban, wore the “I ♥ boobies” bracelets to school. When the assistant principal asked the girls whether there was any other way they could show their support for breast cancer awareness, B.H. and K.M. refused to remove the bracelets. R.T., however, agreed to remove her bracelet and admitted that middle school boys used the bracelets as an entrée for sexual harassment. For their defiance of the ban, B.H. and K.M. received in-school suspension and were barred from the school’s “Snowball Dance.” Their mothers filed suit against the school district.

On a motion for preliminary injunction filed by the plaintiffs, the U.S. District Court for the Eastern District of Pennsylvania declined to apply Fraser, which would have allowed the school district to ban speech that it reasonably deemed vulgar, lewd, or profane. Conducting an analysis that was more etymological than contextual, the district court concluded that there was nothing inherently sexual about the term “booby,” a word that could mean a “stupid fellow” or “a type of seabird.” Because of the perceived multiple meanings of the “I ♥ boobies” phrase, the district court concluded that the school district’s finding of vulgarity lacked a reasonably objective basis and, accordingly, applied the Tinker “substantial disruption” analysis. Finding no evidence of disruption, the district court precluded the school district’s enforcement of its ban on the bracelets. The school district appealed to the Third Circuit, arguing that Fraser and its progeny provide no precedent for the district court’s non-contextual, etymological analysis of the “I ♥ boobies” phrase. On the contrary, however, plaintiffs argued that the Eastern District court properly applied the Tinker standard.

Ultimately, the Third Circuit concluded that the school district’s decision to ban the “I ♥ boobies” was not supported by Fraser. To arrive at this conclusion, under the “narrowest grounds” doctrine, the Third Circuit applied the language of Justice Samuel Alito’s concurrence in Morse to modify the Fraser standard. Alito, issuing a concurrence with both the Morse majority opinion and holding, opined that the school district prerogative to regulate pro-drug speech should not be extended to student political speech. Notwithstanding Alito’s complete concurrence, the B.H. majority applied Alito’s opinion as a binding limitation on Fraser. Accordingly, the Third Circuit placed a new interpretation on Fraser that, absent substantial disruption, school principals may only ban speech with a “plausibly political or social” message when the language of the speech is “plainly lewd,” a determination that should be made by the courts. As an example of patently offensive language, in the case of Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978), the court concluded that comedian George Carlin’s “Seven Dirty Words” monologue contained language that “offends for the same reasons obscenity offends.” These words, according to the B.H. majority, may be categorically banned from the schoolhouse, regardless of political intent.

The majority opinion in B.H. has met opposition: Five dissenting judges within the court wrote two strongly dissenting opinions. As indicated by the dissent, the majority opinion, despite paying ample lip service to the importance of allowing administrators reasonable discretion to manage discipline and decorum, in its effect, tramples local values under a new standard of judicial values. Moreover, the majority opinion upholds student political or social intent, over administrators’ reasonable interpretation of student speech, a result that was rejected by the U.S. Supreme Court in Morse. Importantly, the B.H. case leaves administrators without discretion to exercise common sense and good judgment to educate youth for cultivated citizenship.

John E. Freund III, a founding member of King Spry Herman Freund & Faul, is one of Pennsylvania’s most experienced practitioners in education, employment, civil rights and issues that affect local government and their insurers. He serves as chairman of the education law practice group and is a member of the employment law, public finance, litigation and insurance practice groups.

Keely Jac Collins is an employment and education attorney with the firm and is a frequent author and speaker. For a complete biography and copies of her publications, visit www.kingspry.com.