‘Boobies bracelets’ heading for the Supreme Court?

In 1969, in a case involving children who were disciplined for wearing black armbands to protest the Vietnam War, the Supreme Court ruled that students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Now the court is being asked to take a case that could be a vehicle for rolling back that decision, known as Tinker vs. Des Moines School District.

The new case also involves apparel -- rubber bracelets bearing the message “I ♥ boobies! (Keep a Breast).” In August, the U.S. 3^rd Circuit Court of Appeals ruled that a Pennsylvania school district violated the rights of two middle school girls when it suspended them for wearing the bracelets to promote breast cancer awareness. This week the Easton Area School District decided to appeal the decision to the Supreme Court.

I wouldn’t be surprised if the court took the case. Although Tinker is still “good law,” the court has nibbled around its edges in subsequent decisions and at least one justice -- Clarence Thomas -- thinks the idea that schoolchildren have free speech rights is bonkers. But even if the court weren’t interested in overruling Tinker, it might want to slap down the 3^rd Circuit’s expansive take on it.

The Easton Area School District had good reason to think that it could ban the bracelets, which, whatever their connection to cancer awareness, had a vulgar name that might have produced some disruptive preadolescent foolery. (The Tinker decision allowed schools to suppress student speech if it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”)

Also, in 1986, the Supreme Court, notwithstanding Tinker, upheld the suspension of a high school student who nominated a friend for a school office in a sexually suggestive speech. “Surely,” wrote Chief Justice Warren Burger, “it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.”

But the 3^rd Circuit said that, while the term “boobies” might strike some people as indecent, it wasn’t “plainly lewd.” The court said that a school must allow students to engage in “ambiguously lewd” speech so long as they are commenting on political or social issues. It’s possible that several justices might find that standard too loose.

Might the court go further and revisit the basic premise of the Tinker decision, that students in middle schools and high schools have the right to express themselves on controversial issues?

I think that’s unlikely. Thomas was writing only for himself in a 2007 case in which he noted approvingly that “in the earliest public schools, teachers taught, and students listened.” Chief Justice John G. Roberts Jr. is only a lukewarm supporter of student free speech, but he’s also averse to overruling precedents. And Justice Samuel A. Alito Jr. is on record as supporting the right of students to dissent from a political orthodoxy being pushed by school administrators. Justice Anthony Kennedy and the court’s liberals also are unlikely to vote to overrule Tinker.

Still, the notion that the court took a wrong turn in Tinker is widespread and not just among conservatives. Liberals who cheered when the court upheld the right of students to protest the war with black armbands feel differently about the conservative kid who wants to wear a Confederate flag armband to history class.

In 2006, Judge Stephen Reinhardt, one of the nation’s most liberal federal judges, wrote an opinion for the U.S. 9th Circuit Court of Appeals upholding a San Diego area school’s reprimand of a Christian student who wore a T-shirt expressing his opposition to homosexuality. Reinhardt said that gay students had a right to be free from “psychological attacks that cause [them] to question their self-worth and their rightful place in society.”

Deep down, whatever their politics, a lot of adults probably think that the only right schoolkids have is the right to remain silent. Fortunately, a majority of the court is unlikely to agree, whatever it says about boobies bracelets. And that’s the appropriate outcome. Forming opinions -- and challenging the opinions of others -- ought to be part of everyone’s education.

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