Bench Memos

Judicial Boobery

In a case that is receiving national attention, Mary McLaughlin, a federal judge in Philadelphia, has enjoined a middle school’s ban on breast-cancer-awareness bracelets with “I (heart) Boobies! (Keep A Breast)” and similar slogans.  Rather than deferring to the judgment of those who run the school, as the law requires, Judge McLaughlin has tarnished their authority by imposing her more latitudinarian view of vulgarity.

Two students at the Easton Area Middle School defied the ban on the bracelets with the vulgar slogans and were suspended for wearing them. Federal courts have been groping around in public schools for decades, so the body of law that should have guided Judge McLaughlin in her assessment of the students’ free-speech claim is reasonably clear and well established.

An honest reading of one case in particular would have required a ruling in favor of the school district. In Bethel Sch. Dist. v. Fraser (1986), the U.S. Supreme Court held that schools were at liberty to ban speech that is lewd, indecent, or vulgar even if it is not disruptive. In other words, the tone of the school is under the control of the school. Judge McLaughlin, in her dreary and predictable 40-page opinion, pushed Fraser aside — a move that disregarded the law but allowed her to become the final word in this dispute.  (At least for the time being; the school district has announced it is appealing.)

An application of Fraser that was not so driven to reach a specific result would have required the exercise of a virtue that is rarely found in federal courts: judicial modesty.  Such an approach would have had the court yielding to the authorities at the Easton Area Middle School, who acted in a constitutionally justifiable way in banning the bracelets.

The harm of Judge McLaughlin’s ruling extends far beyond the case itself. She glibly dismissed concerns about the consequences of the decision: “The School has expressed concern that if the ban is lifted, then students will try to test the permissible boundaries with other clothing. Nothing in this decision prevents a school from making a case by case determination that some speech is lewd and vulgar while other speech is not. It should be clear, however, that a school must consider the contours of the First Amendment before it decides to censor student speech.”

The problem is that the “contours” of the first amendment are subjectively, even whimsically, determined by federal courts. What school district would want to enforce even modest restrictions if it will result in expensive and ultimately unsuccessful litigation that undermines its capacity to discipline? Any time a conflict arises in a school that threatens legal action, the wiser and less costly approach by a school district is obvious: surrender.

Over 40 years ago, in the watershed Tinker v. Des Moines Indep. Cmty. Sch. Dist, the Supreme Court determined that students wearing black armbands to protest the Vietnam War enjoyed First Amendment protection so long as the expression did not substantially disrupt the school. Tinker was the first major intervention of federal courts into the day-to-day management of public schools. In his prescient dissenting opinion, Justice Hugo Black (a jurist hardly indifferent to free-speech rights) warned that the Court had created an “entirely new era” in which student discipline would be transferred from local districts to federal courts.

Judge McLaughlin’s arbitrary ruling has taught the two students involved in this case a lesson in contemporary political change: When you disagree with a policy, bypass the responsible authorities who make and enforce the policy. Instead, the more effective approach is to rush into federal court to get your way. The discouraging result for everyone else is that what school districts should be doing — namely, running schools — is subverted, and what federal courts should not be doing — namely, running schools — becomes routine.

— Gregory J. Sullivan is a lawyer who resides in Bucks County.

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