Political Speech, Activism, and Free Speech in Grade School Lawsuits

Free Speech lawsuits generally conjure sensational images of controversial civil protests by angry grassroots political activists burning flags or crosses in broad view of the public. In recent months, a couple of interesting cases have been raised to the fore behind the regulated walls of public school rooms involving young girls causing a stir in Free Speech law – cases which find themselves on opposite sides of the political spectrum: a pro-life case in a California elementary school and a breast cancer awareness case in a Pennsylvania middle school.

In August 2010, a federal district court ruled that an elementary school in Merced, California violated the Free Speech rights and rights against illegal Search and Seizure of a sixth grade student by prohibiting the girl from wearing a pro-life t-shirt in honor of National Pro-Life T-shirt Day (NPLTD) in 2008. The school and three teachers barred the girl, Tiffany Amador, from wearing her anti-abortion t-shirt by reasoning that the shirt presented graphic images that were disruptive to the other elementary school students. The teachers forced the girl into the principal’s office to coerce her to not wear the shirt in school. This latter act, the federal district court held, also violated the girl’s Fourth Amendment rights against illegal searches and seizures. The district court pointed to the US Supreme Court’s requirements that the level of disruption in such school speech cases be substantial, and that the girl’s anti-abortion speech in this instance was by no means proven to be substantial.

This month, the mothers of two Pennsylvania middle school girls filed lawsuits for violation of their daughters’ Free Speech rights for being suspended for wearing earlier prohibited breast cancer awareness bracelets stating “I (heart) boobies!” upon them. The middle school reasoned that the bracelets violated the school’s dress code, which prohibits “vulgarity, obscenity, profanity, or nudity.” Lawyers for the girls argue that while the bracelets may be irreverent or silly, they are certainly far from being vulgar or obscene. Clearly the case is very fact dependent, and will rely on comparisons to other similar Free Speech cases decided by federal courts to help the court in this case make its decision. It will likely be particularly helpful to the girls if they can convince the court that the bracelets’ “I (heart) boobies!” message is political speech. It can be argued that breast cancer awareness and research is dependent upon governmental funding, which is a political issue. By raising awareness through the bracelets, the girls may be able to argue that they are trying to increase federal and state funding for breast cancer research – a truly political task of pulling on Congressional purse-strings.