Breast cancer awareness controversy raises questions about student rights

LAWRENCE — A recent case in which students were disciplined for wearing controversial bracelets highlights the eroding protections for student speech, and the time has come to add a question of intent to the oft-cited standard for determining whether such incidents deserve protection, a University of Kansas professor says in a new study.

In 2010 two middle school students in Easton, Pennsylvania, were suspended for wearing bright bracelets supporting the breast cancer awareness organization Keep a Breast with the slogan “I (Heart) Boobies!” The school’s administration claimed the bracelets were vulgar and had the potential to cause disruption. The students and their families filed a lawsuit that reached the 3rd Circuit. Genelle Belmas, associate professor of journalism, has authored a study comparing the case to four previous Supreme Court decisions involving administrative censorship in schools and argues that eroding protection of student speech shows it is time for a rethinking of speech in schools.

The most famous case, Tinker v. Des Moines Independent School District (1969), revolved around the case of Mary Beth Tinker, who was suspended for wearing a small black armband to school to protest the Vietnam War. Belmas calls the case a “high-water mark for student speech.” The court established a standard that peaceful student speech that does not create a material and substantial disruption and does not invade the rights of others would be protected. Justice Abe Fortas wrote the oft-cited quote “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

“I would argue these bracelets should be considered the same as Mary Beth Tinker’s armband, even if they might be considered more vulgar,” Belmas said.

Three similar cases that followed in the Supreme Court: Bethel School District No. 403 v. Fraser (1986), Hazelwood School District v. Kuhlmeier (1988) and Morse v. Frederick (2007), have routinely sided with administrators and moved away from the protective standard established by Tinker. The court declined to hear the case in which the students were disciplined for wearing Keep a Breast bracelets and that is arguably best for free speech supporters, Belmas said.

“Simply put, the current legal environment for freedom of speech and press in the public schools is not promising,” she wrote.

The key in the case of the Keep a Breast bracelets is that there was no disruption in the schools, Belmas said. It is fine to debate whether slogans such as “I Heart Boobies” is vulgar, but disciplining students for the potential of being disruptive sets a dangerous precedent. It shows students that adults can tell them what to do and say in all cases, that breast cancer awareness is not a worthy cause and denies them of the opportunity to be active, responsible civic citizens, she said. To avoid such situations, a test should be included to determine whether students who engaged in such activities intended to cause a disruption in school.

“There ought to be a revamping of how we think about student speech. I think there needs to be a question of intent,” Belmas said. “Did the student intend to cause a disruption, or are they participating in speech peacefully and without harming others? We need to instill in young people what it means to be a responsible civic citizen and let them know that advocacy is valuable.”

Belmas, who presented her research at the Association for Education in Journalism and Mass Communication conference last month in Montreal, said she respects schools’ needs to maintain order and to educate students without disruption. But students who are passionate about a cause such as breast cancer and wear such bracelets in support of loved ones who have fought the disease without causing disruption should not be punished for their views or advocacy.

“Administrators considering banning these bracelets or other similar apparel would ideally be faced with a Tinker test, amended with an intent requirement,” Belmas wrote. “Requiring administrators to determine the intent of students who are wearing the bracelets would provide a safeguard for students who are truly interested in expressing their support for breast cancer (or any other social issue) while making sure that students whose goal is merely to cause a campus ruckus could be appropriately censured.”