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Update: How the “Boobies” case almost made it to the Supreme Court

March 10, 2014 by Scott Bomboy


A widely followed case about student free speech and “I Heart Boobies” bracelets likely saw its final day in court on Monday as the Supreme Court denied a final appeal from the Easton school district.

KABlogoThe case of Easton Area School District v. B.H reached the Court in December 2013 after the Easton, Pa., public school district asked the Court to take the case after losing in appeals court. The Justices considered the petitions in the case on Friday, in a private closed-door session, and it was listed as denied in court orders released on Monday.

Related Story (August 2012): Circuit court sent clear message in “Boobies” case

Student free speech cases usually garner a lot of attention, and if the Justices had granted the school district’s appeal, it would have been one of the most-watched cases of the Court’s next term, which starts in October. But the Justices denied the case without comment, and the “Boobies” controversy is seems finished for the moment.

In August 2013, the Third Circuit Court of Appeals in Philadelphia upheld a federal district court decision that went in favor of the two students.

If you haven’t heard about the case, two Easton middle schools students, called in court documents B.H. and K.M., wore the popular “I Heart Boobies (Keep A Breast)” bracelets to promote breast cancer awareness at their school for several weeks.

According to court documents, several teachers were concerned about the message the bracelets could send to other students. On the day before the school commemorated Breast Cancer Awareness month, administrators banned the use of the “boobies” on bracelets. But it allowed other ways for students to show support for the cause.

The same day, a security guard saw the student known as B.H. wearing the offending Boobies bracelet and asked her to remove it, and she complied.

But on Breast Cancer Awareness day, the two students refused to remove the bracelets, citing free speech concerns, and they received an in-school suspension and were barred from attending the school’s Winter Ball.

The school said in a letter that the girls were suspended for “disrespect, defiance and disruption.”

Through their mothers, the two students sued the school quickly, with the case heading to District Court. According to court documents, the school district cited a different rationale for the suspensions: The bracelets were banned because they violated the school’s dress-code policy and could be interpreted as lewd because they imparted a double-message about sex.

In the court’s evidentiary hearing, it was disclosed that some middle school officials considered banning the word “breast” entirely at the school. But the officials reconsidered restricting the use of a term like “breast cancer awareness” at the school.

The district court ruled in favor of the two students. It said the bracelets weren’t lewd speech in accordance with the Supreme Court’s Fraser decision, and the bracelets didn’t disrupt the school’s environment under the Court’s well-known Tinker decision. (The Tinker decision from 1967 famously said that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”)

The school district appealed to the Third Circuit Court of Appeals. In a 107-page decision, the majority of the Third Circuit court decided in favor of the students again. But the case was heard en banc, or by the entire panel of 14 judges. Nine judges sided with the students, while five judges dissented.

The school district’s attorneys believe there was enough ambiguity in that Third Circuit opinion, along with a split among other court decisions, to give the Supreme Court good reason to accept the Easton case.

In its petition to the Supreme Court, the school district claims the Third Circuit appeals court misunderstood another Supreme Court decision about student free speech, called Morse v. Frederick (2007) and invented a new test to make a decision about the Easton case.

In a 5-4 decision in the Morse case, Chief Justice John Roberts said a school that punished a student for displaying a “Bong Hits 4 Jesus” banner during a school assembly didn’t violate the student’s First Amendment rights.

In the Easton case, the school district claims the appeals court didn’t rely on Roberts’ majority opinion in the Morse case, but it cited a concurring opinion from Samuel Alito, which could change the future interpretation of Roberts’ opinion.

The school district claimed that other circuit courts were confused about who had the final word in the Morse case, Roberts or Alito, and that the Easton case would let the Supreme Court settle the dispute among the lower courts.

The students’ lawyers believe the Third Circuit appeals court decision wasn’t dependent on the Morse case, and the school didn’t consider the bracelets as possibly lewd until after the two students were suspended.

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