Government intrusion: free speech, breast cancer and chicken nuggets

Some student speech is appropriately limited in our nation’s schools.  I (Heart) Boobies? Photo: Banned bracelets/ AP

WASHINGTON, November 3, 2013 — Some student speech is appropriately limited in our nation’s schools. What has occurred recently in a few schools around the country, however, summons up visions of old-time teachers armed with yardsticks ready to smack any unruly child.

Last week, a Prince George’s County, Maryland high school principal gave in-school suspensions to 75 students who wore pink in support of Breast Cancer Awareness Month. The students were given unexcused absences for missing classes and “zeros” for their classes.  Sanity prevailed when a school system administrator overruled that edict, excused the kids and allowed them to make up missed work.

SEE RELATED: How not to use Craigslist

Those rabble-rouser students dared to wear pink shirts, or pink sweaters, and some painted pink ribbons on their faces. The principal felt these actions posed security concerns, and cited them as violating the school’s uniform policy. The event, labeled “Pink Out,” actually took place over the past two years at this school.  

The student speech picture here has seen more than a few cases end up in our nation’s highest court. In 1988 the Justices in Hazelwood School District v. Kuhlmeier declared that schools had the right to stifle school-sponsored activity such as articles in a school newspaper.  Students at a St. Louis school wanted to publish articles dealing with pregnancy and divorce.

The ruling, since called the Hazelwood Standard, states that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.

In 1994 a ruling addressed a New Jersey middle-school student’s review of R-rated movies in the school’s paper. The Supremes found that the censorship had no valid educational purpose.

SEE RELATED: Taxing decisions ahead for same-sex couples about income taxes

Going from the garment to the accessory and from the ridiculous to the absurd, an Easton, Pennsylvania School District board recently voted to ask the Supreme Court to hear their case involving wrist bracelets. The bracelets said “I (Heart) Boobies-Keep a Breast Foundation.”

In 2010, two middle school girls were suspended from school because they wore these breast cancer awareness bracelets. School administrators maintained that the bracelets were actually “sexual double entendres,” that the bracelets were vulgar, disruptive or both, and that allowing them to be worn would lead to more disruptive cause-based slogans, such as “Feel My Balls” in support of testicular cancer awareness.

John Freund, the school district solicitor, said they and other organizations are “concerned about the implications of a hyper-sexualized environment.” Pardon us, but isn’t that the environment even without the bracelets?

The Pennsylvania case eventually went to court in that state and sanity prevailed.  Nonetheless, seemingly on a mission, the school board appealed the ruling and this past August a Federal Court told the school board, once again, to get a life. The Court said the board did not prove the bracelets were disruptive. Now, seven of eight board members, exercising their rights in our court system, voted to appeal the case to the Supreme Court.   The ACLU has stepped in to represent the girls. 

SEE RELATED: Animals and the Golden Rule: Do you love your pet?

The eighth member believes the district should let sleeping dogs lie. “I think we should be done with it. Let it go. We lost 20, 30 times, I don’t even know anymore,” Frank Pintabone said.

If the Supreme Court agrees to hear this case, some analysts believe the justices will look at the students’ purpose in wearing the bracelets.  The intent was either a sincere interest in promoting awareness of a deadly disease, or, as the school suggests, the goal was to be disruptive and titillating. 

Regardless of the purpose, it is very hard to imagine that wearing a bracelet would cause enough disruption at a school to justify a ban. Moreover, it is harder to imagine that the mere wearing of a bracelet would do anything to further sexualize the school environment. Again, these are middle school youngsters.

A 1969 United States Supreme Court ruling might guide the bracelets case decision if the current Supremes agree to get involved. The Tinker v. Des Moines School District said that it was okay for three public-high-school students to wear black armbands to school to protest the Vietnam War.

Known as the Tinker Standard, the court affirmed, strongly, the students’ First Amendment free speech rights. It held that a student “may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without materially and substantially interfering with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others.”

In language often repeated, the Supreme Court wrote it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech and expression at the schoolhouse gate.

School officials cannot silence student expression just because they dislike it. The Tinker Court said schools must reasonably forecast, based on evidence and not on an undifferentiated fear or apprehension of disturbance, that the student expression would lead to either (a) a substantial disruption of the school environment, or (b) an invasion of the rights of others.

Moving from free speech, it is appropriate to discuss another very important school issue:  chicken nuggets.

This past January, a North Carolina elementary school class “food inspector” took away a female student’s brown bag lunch and told the child it was unhealthy. The child was given chicken nuggets and other items. The lunch from mom contained a turkey cheese sandwich, a banana, potato chips and apple juice.

“What got me so mad is, don’t tell my kid I’m not packing her lunch box properly,” the girl’s mother said… “you’re telling a 4-year-old oh, your lunch isn’t right, and she’s thinking there’s something wrong with her food.”

USDA guidelines require the school to supplement the lunch with anything missing.

A school system spokesperson said “Ultimately, the childcare provider can’t take a Coke and Twinkie away from a child…I would think the Pre-K provider would talk with the parent about that not being a healthy choice for their child.”

School: A place to encourage thought while enjoying mom’s note in your lunch bag.


Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is also available to speak to your group on numerous legal topics.  Paul is the featured legal analyst on the Washington Times Radio, in Washington, D.C., on the Andy Parks show and he is a columnist on the Washington Times Communities.

His book The 8 Critical Things Your Auto Accident Attorney Won’t Tell You is free to Maryland and Virginia residents and can be obtained by ordering it on his website; others can obtain it on Amazon.



This article is the copyrighted property of the writer and Communities @ Written permission must be obtained before reprint in online or print media. REPRINTING TWTC CONTENT WITHOUT PERMISSION AND/OR PAYMENT IS THEFT AND PUNISHABLE BY LAW.

More from Leading Edge Legal Advice for Everyday Matters
blog comments powered by Disqus
Paul Samakow

Attorney Paul Samakow brings his legal expertise to the headlines from life and real-life experience to The Washington Times Communties. A native Washingtonian, Samakow has been a Plaintiff’s trial lawyer since 1980, with offices in Maryland and Virginia. 

Contact Paul Samakow


Please enable pop-ups to use this feature, don't worry you can always turn them off later.

Question of the Day
Photo Galleries
Popular Threads
Powered by Disqus