Some time in the foreseeable future, we may have the pleasure of reading the various opinions of sages like Antonin Scalia and Ruth Bader Ginsberg regarding the import of bracelets bearing the message, ” I ♥ Boobies,” and whether it is a constitutional violation for public schools to ban students from wearing them. In August, the Third Circuit U.S. Court of Appeals rejected Pennsylvania’s’ Easton Area School District’s prohibition of the breast cancer awareness bracelets on the grounds that they were potentially disruptive and inappropriately vulgar.
In late October, the District voted authorize the district’s solicitor to file a petition with the U.S. Supreme Court seeking to have the high court hear arguments in the case. The controversy has been going on for three years, has cost the district thousands of dollars in litigation costs that should have been spent on education, and will result, you can bet, in even more egregious expansion of vulgar language in the schools.
This easily avoidable Ethics Train Wreck occurred when two middle school students in Easton wore the bracelets to school with their parents’ permission despite a school ban that called them “distracting and demeaning.” ETHICS FOUL #2 School is about learning and facilitating learning, not making an effort to intentionally pick fights in the shadowy realm of First Amendment law. Why did the parents do this? Are the provocative bracelets really essential school fare? Will their presence in the schools have a measurable impact on breast cancer awareness? Was the ability of the girls to wear the bracelets, and their opportunity to bend the school to its will worth all the cost, time and disruption this defiance of a dress code was likely to cause a legitimate utilitarian trade-off? I don’t think so.
The school duly suspended the girls, and in November of 2010, the ACLU joined their parents in filing a suit claiming the ban violated their rights to free speech. I’m going to go ahead and designate this ETHICS FOUL #3. I would not feel this way if the ACLU routinely intervened in other, far more egregious cases where student speech is being abused, as in the cases where pro-Second Amendment and NRA T-shirts have been banned, but it does not. The ACLU believes that staunch defense of the First Amendment should be stauncher when it involves issues the ACLU likes, agrees with, or cares about. The ethics principle being rejected is integrity.
Then the school, meeting with predictable defeat at every court stop, continued to fight on and on, presumably for the principle that schools have both the right and the duty to insist on decorum, civility and dignity in class, and that the bracelets represented a slippery slope that, once stepped upon, would eventually lead to the gutter. I have no doubt that the district is right (I know, Dad, I know: “He was right, dead right, as he sped along, and he’s just as dead as if he were wrong..”*), and an equal lack of doubts that this position is doomed. This makes it ETHICS FOUL #4. Once it was clear that this war would be lost, it was irresponsible for the school to devote scarce resources to keep on fighting it.
I have no disagreement with the legal opinion rejecting the district’s appeal. Oh, I think it will make things immeasurably worse for schools, don’t get me wrong, and I think the majority’s reasoning, though sound on the law, is absurd in reality. Take this, for example:
“The justification asserted by the School District in this litigation is that the word “boobies” is vulgar and therefore meets the standard of Fraser. Alternatively, the District argues that the phrase “I ♥ Boobies!” is vulgar because it can be viewed as a double entendre. First, the Court cannot conclude that any use of the word “boobies” is vulgar and can be banned, no matter what the context. The word “boobies” in the context of breast cancer awareness does refer to a female’s breast.”
My theater once gave a performance of “Moby Dick Rehearsed” for high school students. Every reference to “sperm whales” or a man’s “breast” or, yes, Moby Dick provoked such gales of hoots and giggles that the actors had trouble remembering their lines. The use of the word “boobies” evokes thoughts of breast cancer awareness in a middle school class? Who believes that? Or take this interesting passage in the majority opinion, rejecting the school board’s claim that in protecting the boobies bracelet…
“[the court ]will encourage students to engage in more egregiously sexualized advocacy campaigns … including ‘I ♥ Balls!’ apparel for testicular cancer…Like all slippery-slope arguments, the School District‘s point can be inverted with equal logical force. If schools can categorically regulate terms like boobies even when the message comments on a social or political issue, schools could eliminate all student speech touching on sex or merely having the potential to offend.”
Which is not to say that a) the school district’s slippery slope isn’t all but guaranteed, and b) the court’s is neither likely or without remedy. This is a fine and convincing legal argument, but the fact is, once ” “I ♥ Boobies” is given a pass, clever girls wearing items reading“I ♥ Cock!” will be impossible to prevent. But the court is right: you can’t prohibit legitimate speech on the theory that it will let inappropriate speech in the door. If we want to protect free speech from censors, then it must always get the benefit of the doubt in any close call.
This leads us to back to Ethics Foul #1, the act that set all of this in motion. Some genius at the “Keep A Breast” Foundation hit upon “I ♥ Boobies” as a way to make money selling bracelets that would be popular with gradeschoolers exactly because of the double-entendre and perceived vulgarity. Clever. The Foundation turns kids into walking billboards, even though it knows that breast cancer is the last thing on the minds of the vast majority of middle-schoolers, while sex, and thus the sex suggested by the slogan, is quite close to the first thing. It may even have figured out that some school would be willing to fight the bracelet until the last dog died, putting the Streisand effect into play, and giving their message wider publicity. And if this ads crudity to the classroom environment and makes it even harder than it is for schools to keep student minds out of the gutter, so what? The Saint’s Excuse is governing here. “It’s for a good cause,’ and as long as there’s more awareness of breast cancer, undermining legitimate school decorum concerns is a means to an end.
This is the “Dress Code Effect” that I discussed in October, and there’s no way to counter it. I wrote then…
“The truth is that rules can never control conduct sufficiently to overcome those who are determined to undermine them, in the absence of a community and cultural consensus that the conduct is unethical and not to be tolerated. Leaders, governments, authorities, laws and rules can and should point the way, but authority, especially in a democracy, is never enough. That is why it is essential for the public to possess the ability and discipline to think these ethical problems through, carefully and objectively, considering long and short-term consequences and worst case scenarios, before leaping down those slippery slopes.”
This is as good an example as you are going to find. The slogan is cheap, and the sentiment is muddled, as Tracy Clark-Flory wrote in Salon:
“When it’s an incurable case, when the prospects of survival are bleak, you aren’t thinking about how much you love “boobies,” or whatever the diseased body part may be, you’re thinking about how much you don’t want your loved one to die. When death is truly knocking at your door — and I’m not talking about early, uncertain cases — most aren’t thinking about how much they love their breasts, they’re thinking about how much they love not being dead. They’re thinking: Chop those things off, now. Women subject themselves to the pain of chemo and elect to watch their hair fall out; they do this not to save their precious secondary sexual characteristics, but rather to live another day, because it’s worth it, breasts or no breasts.”
It is not even necessarily a healthy message. Other critics have noted that the campaign expropriates the language of sexual objectification and sexual harassment, and transfers it to the schools, and this is true. I think that a boss wearing an “I ♥ Boobies” T-shirt around an office of young women would be vulnerable to a sexual harassment lawsuit, and rightly so.
When I analyze an ethics issue, the starting point is always the question, “What’s going on here?” What I think was going on here was that an enterprising women’s health organization decided that it promoted their undeniably virtuous cause to launch a campaign that would predictably cause problems for public schools and escalate the sexualization and vulgarization of the learning environment there, which is already in a perilous state. The plan worked, and in its own, callous way, it was perfect.
If you believe that the ends justifies the means, and think the eventual “I ♥ Cock” lawsuit is worth it, then you are probably applauding.
Who died maintaining his right of way.
He was right, dead right, as he sped along,
But he’s just as dead as if he were wrong.”