The Easton Area School District’s appeal of a federal court ruling to allow “I (heart) Boobies” bracelets to be worn by students at school will heard by the entire Third Circuit Court of Appeals.
A three-judge panel from the circuit heard arguments in April on the appeal, but an order issued Thursday by Chief Judge Theodore McKee brushed aside the panel’s unpublished opinion and set up a rehearing of the case before the full, 14-judge circuit.
The Easton Area School District asked for a reversal of a lower court’s April 2011 decision that barred the district from disciplining students who wore the bracelets.
The case drew national attention as schools grappled with similar questions over the bracelets, which are sold by the Carlsbad, Calif.-based Keep-a-Breast Foundation. In February, a federal judge in Wisconsin ruled that school officials were allowed to ban the bracelets, opposite to U.S. District Judge Mary A. McLaughlin’s finding in the Easton Area case.
Easton Area Middle School students Brianna Hawk, who was an eighth-grader, and Kayla Martinez, who was in seventh grade, were suspended in 2010 for wearing “I (heart) Boobies!” bracelets.
The students’ attorney, Mary Catherine Roper, of the ACLU, said the court’s decision to hear the case before the full host of judges means there was some disagreement over the three-judge panel’s opinion.
The panel’s opinions are circulated among the circuit’s judges, Roper said, who vote to agree or disagree with it. She said more than half must disagree to push the case in front of the entire circuit, or en banc.
“You never expect an en banc hearing,” Roper said. “What it means is, there is disagreement among the judges.”
John Freund, the school district’s attorney, was not immediately available for comment.
Roper said the court will review the case and may order new briefs from attorneys, but cannot take new testimony or evidence. The court may also choose to hear oral argument, but does not have to. Roper expects the court to ask for argument though.
The lower court’s ruling allowing the bracelets stands until a higher court overrules it.
“We still have that win,” Roper said. “The bracelets are still allowed in the school right now, and that will be the situation until the court says something else.”
