By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors. Please submit your questions to: legalmailbagcasciacorg. _________________________________________________________________________________________

Dear Legal Mailbag:

A seventh grade girl came to my school yesterday wearing a “I (heart) Boobies” bracelet. It didn’t take long before one of the seventh grade boys pointed and laughed, saying “boobies” repeatedly. The teacher reported the situation to me, and I called the girl down to the office. She seemed quite sincere, and she explained that she was wearing the bracelet to bring awareness to breast cancer. I expressed support for the cause, but I politely explained that we cannot have vulgar bracelets in our school. It was a good conversation (not without a few tears), and I thought we were all set.

Today I received an irate call from the mother. She was polite but resolute. She told me that she had already talked with the Connecticut Civil Liberties Union, and she was prepared to bring a claim to federal court that my “edict” violated the daughter’s First Amendment rights. I was stunned because I thought this was pretty straightforward. But I don’t want to be the test case either. Should I reconsider my “edict”?

Signed,
Risk Averse

Dear Averse:

We don’t know how far the mother and the CCLU will push this matter. But this situation is anything but straightforward. As you remember from your graduate course in school law (your favorite, right?), students have free speech rights in school as long as the speech is not vulgar and/or you do not reasonably forecast that the speech will cause material disruption or substantial interference with the education process. Either limitation on student free speech rights may apply here. Sadly, it is not possible to predict how the courts in Connecticut would rule if a claim were actually filed.

You can stand your ground on the issue of vulgarity . . . if you want. Just this year, two different federal courts have ruled on this very issue. In the North District of Indiana, the judge ruled that the bracelets were indeed vulgar and that school officials had every right to prohibit students from wearing them. J.A. v. Fort Wayne Community Schools, No. 1:12-cv-00155 JVB (N.D. Ind. 2013). By contrast, the Third Circuit Court of Appeals reached the opposite conclusion, finding that the bracelets are not vulgar and that school officials violated the free speech rights of students by banning them. B.H. v. Easton Area School District, 725 F.3d 293 (3d Cir. 2013).

In the B.H. case, the Third Circuit also found that the bracelets were not disruptive, but we must remember that disruption is a factual inquiry. I would not consider the laughing and pointing by one knucklehead to be material disruption or substantial interference with the educational process. But if the wearing of the bracelets does in fact distract and disrupt, you will be able to take action. However, unless and until you can prove that such is the case, I would relent and lift the ban.