JA v. Fort Wayne Community Schools

Filing 35

OPINION AND ORDER DENYING 17 MOTION for Preliminary Injunction . Clerk DIRECTED to enter judgment in favor of Defendant Fort Wayne Community Schools. Signed by Judge Joseph S Van Bokkelen on 8/20/13. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
J.A. et al.,
Plaintiff,
v.

Civil Action No. 1:12-CV-155 JVB

Fort Wayne Community Schools,
Defendant.

OPINION AND ORDER
This case arises out of a controversy between Fort Wayne Community Schools (Defendant)
and a student, J.A. (Plaintiff), over a bracelet bearing the slogan “I ♥ boobies (Keep a Breast).”
The school interpreted the bracelet as conveying a lewd, vulgar, obscene, or plainly offensive
message and confiscated it from Plaintiff when she wore it at school. Plaintiff argues that the
bracelet promotes a positive breast cancer awareness message and that the school’s ban violates
the First Amendment’s free speech protections. She seeks a permanent injunction allowing her to
wear the bracelet at school.
The parties agreed that the trial on the merits should be advanced and consolidated with the
preliminary injunction hearing pursuant to Fed. R. Civ. P. 65(a)(2). They introduced evidence in
the form of depositions and exhibits and submitted trial briefs. The Court also held a hearing to
allow the parties to present their arguments orally.
The Court has reviewed all submissions and has considered all the arguments. Giving
deference to the school as it must, the Court finds that Defendant’s interpretation of the bracelet
1

as lewd or vulgar is reasonable. Therefore, the Court denies Plaintiff’s request for a declaratory
judgment and permanent injunction.

A. FACTS
Plaintiff received her bracelet as a gift from her mother who is a breast cancer survivor. The
outside of the bracelet reads, “I ♥ boobies (Keep a Breast).” (J.A. Aff., DE 22-2 at 3; J.A. Dep.,
DE 22-1 at 6.) On the inside of the bracelet is printed the website of the Keep a Breast
Foundation, www.keep-a-breast.org, and includes the words “art. education. awareness. action.”
(DE 22-2 at 3.) The Foundation states on its website that it uses the phrase “I ♥ boobies” to
“speak to young people in their own voice.” Frequently Asked Questions, http://www.keep-abreast.org/faq/#where-does-the-money-raised-go (last visited Aug. 1, 2013).
Plaintiff will be a senior for the 2013–14 school year at North Side High School (“North
Side”), part of Fort Wayne Community Schools. (DE 22-1 at 2.) A total of 1,705 students
attended North Side and 30,647 attended schools across Fort Wayne Community Schools in
2012, making it one of the largest school corporations in Indiana. (Enrollment Bulletin, DE 22-3
at 78.)
Defendant prohibits students from wearing “inappropriate” plastic bracelets that contain
“messages that are solicitous, profane, [or] obscene.” (Disciplinary Rules, DE 22-3 at 54; Dress
Policy, DE 28-1 at 4.) The school strictly enforces this policy by confiscating banned bracelets.
Confiscated bracelets have included the slogans, “I’m a free bitch,” “Fuck Off,” “Sexy,” “Ask
me about my wiener,” “Bad Ass,” and “Save the Boobs.” (Jovan Barnes Aff. DE 25 at 1; DE 223 at 73).

2

The I ♥ boobies bracelet came to Defendant’s attention in 2010 after a male student wearing
the bracelet harassed a female student at North Side. (Witherspoon Dep., DE 22-3 at 16; Ans. to
Pl. Interrog., DE 22-3 at 65.) School administrators concluded that the bracelet’s terminology
was “offensive to women and inappropriate for school wear” making the bracelet “lewd, vulgar,
obscene, solicitous, and/or plainly offensive speech.” (Ans. to Pl. Interrog., DE 22-3 at 66.) Since
that time, Defendant has confiscated a number of I ♥ boobies bracelets across the school system.
(DE 22-3 at 73–74.)
J.A. started wearing the bracelet to school in December 2011, after the school had already
banned the bracelet. (DE 22-1 at 4.) She wore the bracelet for three months before a school
administrator confiscated it in March 2012. (Id.)

B. LEGAL STANDARD
(1) The Injunction Standard
Plaintiff has requested a permanent injunction against the school. In order to succeed on this
permanent injunction, Plaintiff must show that her case meets five criteria:
(1) [that she has] succeeded on the merits; (2) no adequate remedy at law exists; (3)
[she] will suffer irreparable harm without injunctive relief; (4) the irreparable harm
suffered without injunctive relief outweighs the irreparable harm [Defendant] will
suffer if the injunction is granted; and (5) the injunction will not harm the public
interest.
Old Republic Ins. Co. v. Emp’rs Reins. Corp., 144 F.3d 1077, 1081 (7th Cir. 1998).
Defendant argues that Plaintiff has not met criteria 1, 3, 4, or 5 of the test. However,
Defendant relies on the foundational argument that Plaintiff does not have a First Amendment
right to wear the bracelet in school. If Plaintiff succeeded on the merits, then she would have a

3

First Amendment right to wear the bracelet at school and would meet all the criteria for the
injunction. Therefore, the Court will focus on whether Plaintiff succeeds on the merits.

(2) The Fraser Standard
Students do not check their First Amendment rights at the door when they enter the school.
Tinker v. Des Moines Indep. Comty. Sch. Dist., 393 U.S. 503, 506 (1969). However, the First
Amendment does not compel schools to “surrender control of the American public school system
to public school students.” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686 (1986)
(quoting Tinker, 393 U.S. at 526 (Black, J., dissenting)). The students’ rights are curtailed by the
schools’ “countervailing interest in teaching students the boundaries of socially appropriate
behavior,” Fraser, 478 U.S. at 681, and to protect “students from offensive speech.” Nuxoll ex
rel. Nuxoll v. Indian Prairie Sch. Dist. No. 204, 523 F.3d 668, 671 (7th Cir. 2008). This interest
flows from the schools’ responsibility to teach students the “‘habits and manners of civility’
essential to a democratic society.” Fraser, 478 U.S. at 681.
The Supreme Court wrestled with the scope of a school’s ability to limit vulgar speech in
Fraser. In that case, a high school student gave a speech that included an “elaborate, graphic, and
explicit sexual metaphor” to an auditorium full of his classmates. Id. at 678. As they heard the
speech, some students “hooted and yelled” while others “graphically simulated the sexual
activities pointedly alluded to in [the student’s] speech.” Id. The school suspended the speaker
for three days for violating school rules that banned “obscene, profane language or gestures.” Id.
In affirming the school’s ability to limit vulgar speech, the Court held that “essential lessons
of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or
offensive speech.” Id. at 683. The Court acknowledged that the authority to “determin[e] what
4

manner of speech . . . is inappropriate properly rests with the school board.” Id. Drawing on this
principle, the Court crafted a new rule allowing schools to prohibit students from using lewd,
vulgar, obscene, or plainly offensive speech while in school. Id. at 683–85. The Court upheld the
school’s decision to sanction the offending high school student because his speech could
reasonably be interpreted as lewd and vulgar. Id. at 685.
Fraser established that schools should get deference from the courts when they determine
whether student speech is lewd or vulgar. The deference is reasonable because vulgarity,
lewdness, and obscenity are determined by “opinions and perspectives” that “vary widely from
one community to the next.” B.H. ex rel. Hawk v. Easton Area Sch. Dist., No. 11-2067, 2013
U.S. App. LEXIS 16087, at *114 (3d Cir. Aug. 5, 2013) (Hardiman, J. dissenting). The
appropriateness of language also depends on “contextual subtleties.” “A shockingly indecorous
act at the dinner table may be par for the course in the locker room or on the playground.” Muller
ex rel. Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530, 1543 (7th Cir. 1996); see also FCC v.
Pacifica Found., 438 U.S. 726, 747 (1978) (“Words that are commonplace in one setting are
shocking in another.”).
For these reasons, school officials who “know the age, maturity, and other characteristics of
their students” are in a much better position to decide whether speech is vulgar than judges who
are “restricted to a cold and distant record.” B.H., 2013 U.S. App. LEXIS 16087, at *34. Judges
are “outsiders” who do not have the experience and competence to “tell school authorities how to
run schools in a way that will preserve an atmosphere conducive to learning.” Nuxoll, 523 F.3d
at 671–72; see also Brandt v. Bd. of Educ. of City of Chi., 480 F.3d 460, 467 (7th Cir. 2007)
(“[Schools] have an interest of constitutional dignity in being allowed to manage their affairs and
shape their destiny free of minute supervision by federal judges.”).

5

Giving appropriate deference to schools requires courts to review school determinations by
asking whether an objective observer could reasonably interpret the slogan as lewd, vulgar,
obscene, or plainly offensive. Muller, 98 F.3d at 1543 (7th Cir. 1996) (“the touchstone is
reasonableness.”). This standard requires courts to evaluate the context, content, and form of the
speech in addition to the age and maturity of the students. B.H., 2013 U.S. App. LEXIS 16087, at
*34. This means that the “subjective intent of the speaker is irrelevant.” Id. The older and more
mature the students are, the more freedom they have to speak. However, “heavy” oversight by
the courts over high schools “make[s] little sense.” Nuxoll, 523 F.3d at 671.
This Court is aware that the Court of Appeals for the Third Circuit handed down an en banc
opinion in a case involving the exact same bracelet just a few weeks ago. That case involved two
female middle school students who started wearing the bracelets to school in 2010. B.H., 2013
U.S. App. LEXIS 16087, at *6. Administrators allowed students to wear the bracelets for several
months. However, they eventually decided to ban them because of their concerns about students
using them as an excuse to make inappropriate sexual comments. Id. The students filed suit in
federal court seeking an injunction against the school. The district court granted the injunction
after finding the phrase “I ♥ boobies” could not “reasonably be deemed to be vulgar” because it
was used in the “context of a national breast cancer awareness campaign.” B.H. et al. v. Easton
Area Sch. Dist., 827 F. Supp. 2d 392, 406 (E.D. Pa. 2011).
The Third Circuit upheld the district court’s conclusion only after crafting a brand new rule
modifying the traditional Fraser standard. The court held that a school can only limit student
speech under Fraser if the speech can reasonably be interpreted as either: (1) plainly lewd, or (2)
ambiguously lewd and cannot “plausibly be interpreted as commenting on political or social
issues.” B.H., 2013 U.S. App. LEXIS 16087, at *6. The Third Circuit crafted this rule by grafting

6

Justice Alito’s concurring opinion from Morse v. Frederick, 551 U.S. 393 (2007), onto the
Fraser standard. B.H., 2013 U.S. App. LEXIS 16087, at *37. The Third Circuit relied on Alito’s
concurrence concluding that it, not the majority opinion provided the controlling law. They
reached this conclusion after extending the “narrowest grounds” doctrine articulated in Marks v.
United States, 430 U.S. 188, 193 (1977), which normally applies when “no single rationale
explaining the result enjoys the assent of five Justices.” Id. The Third Circuit extended the
doctrine to give controlling weight to a concurring justice who articulates the narrowest ground
supporting a decision if that justice’s vote was necessary to reach a majority. B.H. 2013 U.S.
App. LEXIS 16087, at *38–40.
Using their new rule, the Third Circuit majority upheld the district court’s decision because it
found that the bracelet’s language was not plainly lewd and could be interpreted as commenting
on a social issue. Id. at *70–71. Because the majority upheld the district court’s decision on these
grounds, they did not “determine whether a reasonable observer could interpret the bracelets’
slogan as lewd.” Id. at 70 n.22.
However, the Seventh Circuit has already expressly rejected the argument that Alito’s
opinion controls Morse. The court found that by “join[ing] the majority opinion [in Morse], not
just the decision,” “Justices Alito and Kennedy made it a majority opinion and not merely . . . a
plurality opinion.” Nuxoll, 523 F.3d at 673. Therefore Justice Alito’s concurrence was merely his
own “view of the permissible scope of [school] regulation [of student speech].” Id. The Third
Circuit majority recognized that their novel reading of Morse implied “reject[ing] the Seventh
Circuit’s . . . approach.” B.H. 2013 U.S. App. LEXIS 16087, at *49 n.17. The Seventh Circuit is
in good company, as eight other appellate courts have adopted the rule articulated by the

7

majority opinion in Morse instead of Alito’s concurrence. Id. at *93 & n.1 (Hardiman, J.
dissenting).
The majority’s opinion in Morse did not establish new limits on a school’s ability to regulate
student speech commenting on political or social issues. The only possible limit the opinion
placed on Fraser was an instruction to schools to avoid banning “any speech that could fit under
some definition of ‘offensive.’” Morse, 551 U.S. at 409.
Therefore, the bracelet’s commentary on social or political issues does not provide additional
protection under the First Amendment. This Court will ask solely whether the school made an
objectively reasonable decision in determining that the bracelet was lewd, vulgar, obscene or
plainly offensive.

C. ARGUMENT
Defendant did not argue that the bracelet caused a substantial disruption. Therefore, the
Court will only analyze the school’s decision to ban the bracelet under Fraser. Determining the
meaning of the bracelet requires the Court to analyze the meaning of the words individually, the
slogan as a whole, and the age and maturity of students at North Side.

(1) The Word “Boobies” is Sometimes Vulgar
Defendant argues that the word “boobies” is vulgar because it “describes a female’s breasts
in an inappropriate manner.” (DE 22-3 at 11). Plaintiff responds by arguing that the term

8

“boobies” is a widely-recognized slang synonym for breasts that comes nowhere near to the
“elaborate and graphic sexual metaphor” used in Fraser.
Plaintiff places too much weight on contrasting the bracelet’s message with the metaphor
used in Fraser. A phrase may be vulgar even if it is not an “elaborate, graphic, and explicit
sexual metaphor.” K.J. et al v. Sauk Prairie Sch. Dist. et al., No. 11-cv-622-bbc, 2012 U.S. Dist.
LEXIS 187689, at *17 (W.D. Wis. Feb. 6, 2012) (characterizing the “I ♥ boobies” slogan as a
“far cry from the extended metaphor for sexual intercourse in Fraser” but still “sexual innuendo
that is vulgar, at least in the context of a middle school”.). The Court must focus on evaluating
the bracelet’s slogan within the facts of this case.
Webster’s dictionary defines “booby” as a term for breast that is sometimes vulgar.
Webster’s 3rd New Int’l Dict. of the Eng. Language Unabridged 252 (2002). Webster’s defines
vulgar speech as “crude or offensive” or “lewd, obscene or profane.” Id. at 2566.
A federal judge has also found that ‘“boobies’ is a morally immature and crude term for
breasts.” K.J., 2012 U.S. Dist. LEXIS 187689, at *17–18. Even Plaintiff herself acknowledged
that the term is slang as well as “tasteless or immature.”
The word “boobies” is clearly not just an innocuous informal synonym used by young people
to refer to breasts. However, its appropriateness is highly contextual. Determining its vulgarity,
or lack thereof, requires the Court to examine its use in the entire phrase.

(2) The Phrase “I ♥ boobies” May Be Lewd or Vulgar
Plaintiff argues that the bracelet clearly promoted breast cancer awareness, foreclosing any
possibility that it could be interpreted as a sexual witticism. Defendant counters that the

9

bracelet’s message can also connote a sexual attraction to breasts, especially when it is used by
teenage boys.
Therefore, this Court must ask whether there is evidence to support the school’s
interpretation. The record provides at least three instances. First, Defendant banned the bracelet
after a male student stared at a girl and repeated the words “I love boobies” while wearing the
bracelet. Second, Plaintiff testified that male students liked to repeat the phrase while wearing
the bracelets, not because they were supporting breast cancer awareness, but because they liked
saying “boobies.” Third, there was an incident where some high school students were “taunting”
a particular student about the bracelet. (DE 22-3 at 13.) Although the record is silent on what the
students were saying, it is reasonable to infer that the taunting had something to do with the word
“boobies.” This type of behavior is similar to that of the middle school students in the Easton
case who “parroted the phrase on the bracelets while conveying sexual attraction to breasts.”
B.H., 2013 U.S. App. LEXIS 16087, at *118 (Hardiman, J., dissenting).
Middle school boys are not the only ones who interpret the bracelets sexually. Adults who
make a living selling sexually themed items have tried to acquire the bracelet. The Keep a Breast
Foundation has denied requests from “truck stops . . . vending machine companies, and
pornographers to sell the bracelet.” Id. at *12. Clearly, the breast cancer awareness message does
not eliminate the vulgar meaning behind “I ♥ boobies.”
Finally, of the three other federal courts to examine this bracelet, only the Pennsylvania
District Court concluded that it was unreasonable for an objective observer to interpret the
bracelet’s message as vulgar. B.H. et al., 827 F. Supp. 2d at 406. The dissent in the Third Circuit
case and the Wisconsin federal court agreed that the positive cancer awareness message did not
sanitize the vulgar slogan. See B.H., 2013 U.S. App. LEXIS 16087, at *118 (Hardiman J.,

10

dissenting); K.J., 2012 U.S. Dist. LEXIS 187689, at *17. The Third Circuit majority did not
address whether the phrase could be vulgar because they viewed its social commentary sufficient
to grant it First Amendment protection. B.H., 2013 U.S. App. LEXIS 16087, at *70 n.22.
There is evidence that a reasonable observer could interpret the bracelet as being vulgar.
Now the Court must examine the school’s environment to evaluate the age and maturity of the
students.

(3) The Age and Maturity of the North Side Students Supports Defendant’s Decision
Plaintiff argues that, even if this phrase is “tasteless,” high schoolers are mature enough to be
exposed to this slogan. Yet high school is not a magical place where students leave behind a
sexually charged middle school environment and automatically become mature adults. Freshman
students are often only 14 years old and “on the threshold of awareness of human sexuality.”
Fraser, 478 U.S. at 683–84. Therefore, the Court must consider evidence about the maturity
level of the students at the school. Maturity does not necessarily correspond to the level of
exposure to sexual messages. Rather, maturity impacts the appropriateness of language that
administrators allow in a school environment. Immature students are less able to handle
messages containing sexual innuendo.
The evidence in the record reveals a low maturity level at the school. Male high school
students said the word “boobies” in the halls and in the classroom, conveying a sexual message
rather than supporting breast cancer awareness. A number of students wore other bracelets with
plainly lewd and obscene words written on them. The school also had to stop students from
taunting a student wearing a bracelet. These incidents demonstrate a maturity level similar to

11

middle school students. The school could therefore reasonably conclude that the bracelet
contained sexual innuendo that was vulgar within the context of North Side High School.

(4) The Bracelet’s Message is Ambiguously Lewd and Therefore Defendant’s Ban is
Reasonable
Considering all these factors, the bracelet “falls into a gray area” between being “plainly
lewd and merely indecorous.” B.H. 2013 U.S. App. LEXIS 16087, at *115 (Hardiman J.,
dissenting); K.J., 2012 U.S. Dist. LEXIS 187689, at *17 (stating that the phrase “straddles the
line between vulgar and mildly inappropriate.”). When confronted with ambiguously vulgar
slogans, federal courts have sided with the school administrators’ decision to ban them. In a
Massachusetts case, a federal court upheld a ban on a “lukewarm” sexual innuendo phrased as
“See Dick Drink. See Dick Drive. See Dick Die. Don’t be a Dick.” Pyle ex rel. Pyle v. S. Hadley
Sch. Comm., 861 F. Supp. 157, 159 (D. Mass. 1994) vacated on other grounds Pyle v. South
Hadley Sch. Comm., 55 F.3d 20, 21 (1st Cir. Mass. 1995).
Another federal court upheld a ban on a double entendre “Drugs Suck.” Even though the
word “suck” could also mean “bad” in the context of discouraging drug use, the court found that
the message’s sexual connotations allowed the school to ban the slogan. Broussard v. School Bd.
of Norfolk, 801 F. Supp. 1526, 1536–37 (E.D. Va. 1992).
Even in Morse the Supreme Court rejected the notion that the plaintiff’s sign, “Bong Hits for
Jesus,” was merely “nonsense meant to attract television cameras.” Morse, 551 U.S. at 401.
Instead the Court found that the school principal’s interpretation of the phrase as promoting
illegal drug use was plainly reasonable. Id.

12

This case is also distinct from the Easton case. In that case, administrators waited several
months to ban the bracelets, and did so even though they had not “heard any reports of disruption
or student misbehavior linked to the bracelets.” Easton, 827 F. Supp. 2d at 397. There was also
evidence that the administrators did not “actually consider the word boobies to be vulgar.” Id. at
407. In contrast Defendant responded swiftly to a reported disruption caused by a student using
the bracelet’s slogan in an offensive manner. Additionally, the record indicates that they
consistently enforced their ban, including confiscating similar bracelets such as one that said
“Save the Boobs.”
If the Court adopted Plaintiff’s analysis and issued an injunction, Defendant’s ability to
regulate speech that is lewd but supports a noble cause will be limited. As the dissent in Easton
noted, this bracelet is not the only one with a slogan that toes the line between mildly
inappropriate and vulgar in the name of supporting cancer awareness. One organization the
dissent highlighted was The Testicular Cancer Awareness Project, which sells bracelets
imprinted with the words of its website “feelmyballs.com.” B.H. 2013 U.S. App. LEXIS 16087
at 123–24 (Hardiman, J., dissenting). Defendant has dealt with this challenge first hand. One of
the bracelets confiscated by the school used the slogan “Save the Boobs.” If the “I ♥ boobies”
bracelet is allowed it is difficult to articulate a principle that distinguishes it from “feel my balls”
or “Save the Boobs.” School officials, who know the age, maturity, and other characteristics of
their students better than federal judges, are in a better position to decide whether to allow these
products into their schools. Issuing an injunction would take away the deference courts owe to
schools and make their job that much harder.

13

D. CONCLUSION
Running one of the largest school corporations in the state is a difficult task. The last thing
Fort Wayne Community Schools needs is for an outsider from a courthouse to scrutinize every
move in the schoolhouse. The evidence in the record demonstrates that Defendant prohibited the
bracelet based on a reasonable belief that it was lewd, vulgar, obscene or plainly offensive.
Therefore, this Court must defer to Defendant’s judgment and deny Plaintiff’s motion for a
permanent injunction.
The Court denies Plaintiff’s motion for declaratory judgment and permanent injunction (DE
17). The Clerk is ordered to enter judgment in favor of Defendant.

SO ORDERED on August 20, 2013.

S/ JOSEPH S. VAN BOKKELEN

JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE

14