District Seeks Supreme Court Review in ‘Boobies’ Bracelets Case

By Mark Walsh — December 07, 2013 3 min read
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A Pennsylvania school district is asking the U.S. Supreme Court to overturn a lower court decision that upheld the right of students to wear the popular “I ♥ Boobies” breast-cancer awareness bracelets.

The Easton Area School District filed its appeal this week in a closely watched student free-speech case. There was some question about whether the district would take the case to the high court because of the expense of such an appeal and the fact that the district has had to lay off personnel recently.

The district is appealing an Aug. 5 decision by the full U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, that the “I ♥ Boobies” bracelets worn by middle school students were not plainly lewd and were a form of commentary on a social issue that did not disrupt school.

Administrators at Easton Area Middle School believed the reference to “boobies” on the breast-cancer bracelets was vulgar and inappropriate for middle school students.

Two students who were suspended for defying the prohibition challenged it in court through their parents as a violation of their First Amendment free-speech rights. The students are Brianna Hawk and Kayla Martinez, who are now in high school.

The 3rd Circuit court ruled 9-5 to uphold an injunction blocking the school district from barring the bracelets, which are sponsored by the Keep a Breast Foundation of Carlsbad, Calif.

In its Supreme Court appeal, the school district argues that the 3rd Circuit ruling undermines the high court’s 1986 decision in Bethel School District v. Fraser, which upheld a school’s discipline of a high school student’s lewd speech before a student assembly.

“The 3rd Circuit’s decision undermines Fraser‘s basic premise that vulgar, lewd, profane, or obscene expression can be constitutionally prohibited in the public school environment, even if the same expression by adults might be protected by the First Amendment,” said the district’s brief in Easton Area School District v. B.H. (Case No. 13-672).

“There is no suggestion in Fraser, or its progeny, that student speech full of sexual innuendo or scatological implications must be tolerated by the Constitution just because an argument can be made to connect them with some political or social cause,” adds the brief, filed by Bethlehem, Pa.-lawyer John E. Freund III.

The district also argues that the 3rd Circuit court mistakenly concluded that a concurring opinion by Justice Samuel A. Alito Jr. in a 2007 student speech case, Morse v. Frederick, was a binding part of the court majority’s decision in that case, which upheld the discipline of a student who displayed a banner that read “Bong Hits 4 Jesus” at a school event.

Justice Alito said in his Morse concurrence that he joined the majority opinion on the understanding that “it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue.”

The 3rd Circuit court said in the Easton case that the Alito concurrence means that speech plausibly interpreted as political or social commentary is protected from categorical regulation in schools.

The school district notes in its brief that most other lower courts to interpret the Morse decision have not treated Justice Alito’s concurrence as binding.

“This court should grant certiorari to determine whether the First Amendment protects student speech, reasonably deemed lewd, even though that contains a political or social message,” the district brief concludes.

A response to the appeal from the two students and their parents, who are represented by the American Civil Liberties Union of Pennsylvania, is due by Jan. 6.

A version of this news article first appeared in The School Law Blog.