Cheerleaders, Pink Tees, and Free Speech
Ah, October! Cooler weather, golden and scarlet-hued leaves, pumpkin flavored everything and Halloween. And – – the color pink. October is widely known as Breast Cancer Awareness Month and pink is its signature shade.
Yes, in October, Panera Bread bakery-cafes sell a “pink ribbon bagel” and the National Football League has professional ball players donning pink uniforms. And then there are the events: walks, galas, dinners. There don’t seem to be enough days in the month to make time for all the breast cancer fundraising events. Just last week, Bloomingdales and Saks Fifth Avenue each sponsored its own star-studded dinner for breast cancer research. On the very same evening.
Add to the list of those rallying for the cause, cheerleaders at Gilbert High School in Gilbert, Arizona.
These enterprising young ladies, in an effort to raise money for breast cancer research, had pretty-in-pink t-shirts made with the catchy slogan “Feel for Lumps, Save Your Bumps.” The t-shirts were going to be worn while cheering and while collecting donations at school football games, until the school’s principal found out about the plan. He deemed the shirts inappropriate and banned the cheerleaders from wearing them.
Combine nubile young teenage girls with a fuddy-duddy of a principal possibly encroaching on both free speech and charitable giving, and all the ingredients were there for the story to quickly garner national attention. But the press accounts didn’t do the legal analysis, balancing public school students’ First Amendment rights to freedom of expression against a public school’s right to censor particular types of speech.
We did, and here’s our verdict: If the students sued, they’d likely be allowed to wear these shirts. Here’s why.
While students do not, in the words of the U.S. Supreme Court, “shed their constitutional rights…at the schoolhouse gate”, these rights must be viewed in light of the special characteristics of the school setting. This makes good sense. Schools aim to provide a safe, distraction-free environment for students to learn and school officials cannot simply let students do and say as they please. But the Court gives students quite a bit of leeway, permitting limitations on student speech only when it materially and substantially disrupts the school’s mission and discipline, or if such speech is offensively lewd or indecent or promotes illegal drug use.
The cheerleaders’ t-shirts clearly have nothing to do with illegal drugs and though perhaps titillating, it’s a stretch to characterize the lingo on the back “lewd or indecent”.
The press mentioned a strikingly similar case from earlier this year, in which students, again in the name of fundraising for breast cancer research, wanted to wear “I Heart Boobies!” bracelets. In that case, a district court in Pennsylvania determined that the word “boobies” was not vulgar, neither on its own, because of the different meanings of the word, nor in context as used, in relation to breast cancer awareness.
The slogan on the Arizona girls’ pink tees seems comparatively tame. And even more helpful for the cheerleaders, the plan was to wear the shirts on two separate game days in October, which according to the Pennsylvania court would have been appropriate because – did we mention this? – October is Breast Cancer Awareness Month.
Of course, the administration at Gilbert High could still ban the tees from the field if the shirts were likely to cause a substantial disruption. But the Pennsylvania court found that the Boobies bracelets were unlikely to disrupt, and those were worn in the classrooms and during school hours. The Arizona cheerleaders were not even asking students wear their tees during normal school hours, but just on the field during football games.
The principal at the cheerleaders’ high school was probably just trying to avoid offending a parent or student or two, and that’s part of his job. And legally, the Arizona courts are free to take or leave the outcome of the “I Heart Boobies!” case, which after all, was decided in a different legal jurisdiction. But if the “Feel for Lumps, Save Your Bumps” shirts were to make their way to the inside of a courthouse, it’s likely that the cheerleaders would be cheering on their way out.