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Media Alerts - B.H. v. Easton Area School District - Third Circuit
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August 6, 2013
  B.H. v. Easton Area School District - Third Circuit
Headline: Third Circuit Rules Wearing of Breast Cancer Awareness Bracelet ("I ¿ Boobies!") at Middle School is Protected Free Speech

Area of Law: free speech in schools, First Amendment rights

Issues Presented: Whether a school district violated a student's right to free speech when it disciplined the student for wearing a bracelet with the phrase "I ¿ boobies!" as part of a breast-cancer awareness campaign?

Brief Summary: The Third Circuit, sitting en banc, ruled by a 9-5 vote that it was unconstitutional for a school district to ban "I ¿ boobies!" bracelets, which were part of a breast-cancer awareness campaign, because such a ban violated students' right to free speech. In reaching its decision, the court addressed for the first time the issue of whether a school could restrict potentially offensive speech that commented on social or political issues. After reviewing the relevant precedents, the Third Circuit set up a free speech framework for schools seeking to restrict student speech: (1) plainly lewd speech can be restricted regardless of whether it comments on political or social issues; (2) speech that can be reasonably interpreted as lewd can be restricted as long as it cannot plausibly be interpreted as commenting on political or social issues, and (3) speech that is not plainly lewd and can be plausibly interpreted as commenting on political or social issues may not be restricted. In this case, since the bracelet saying "I ¿ boobies!" was not plainly lewd and addressed a social issue (i.e. breast-cancer awareness), the bracelets could not be banned. In addition, the school district failed to show that the bracelets disrupted the school in a substantial way because the bracelets were worn by students for more than two weeks without any disturbance, inappropriate comments, or student misbehavior. Accordingly, the Third Circuit affirmed the District Court's preliminary injunction on the bracelet ban.

Extended Summary: This case is about a student's right to free speech and a school's need to control the educational environment. The Keep A Breast Foundation wanted to start a public information campaign that would get young women talking about breast cancer in a cool and trendy manner. The Foundation decided to sell colored bracelets with the quotes "I ¿ boobies! (KEEP A BREAST)" and "check y¿urself! (KEEP A BREAST)." Two middle-school girls from the Easton Area School District (EASD) named B.H. and K.M. purchased "I ¿ boobies" bracelets with their mothers in order to promote breast cancer awareness during the 2010-2011 school year. They, along with three other students, wore the bracelets for several weeks. During this time, the bracelets did not cause any disruptions or inappropriate comments. However, a number of teachers noticed the bracelets and had discussions with school administrators regarding how they should respond. No action was taken at that time. Later, one day before a Breast Cancer Awareness Month celebration, the school informed its students that bracelets with the word "boobie" would not be allowed. Nevertheless, students B.H., K.M. and student R.T. wore "I ¿ boobies!" bracelets to school the following day. When confronted by school authorities, R.T. agreed to take her bracelet off but B.H. and K.M. did not and were disciplined by the school. Subsequently, EASD banned bracelets bearing the "I ¿ boobies!" slogan altogether.
The mothers of K..M. and B.H. sued EASD asking that the disciplinary actions against their girls be erased and that the ban on bracelets be lifted. The District Court preliminarily enjoined the bracelet ban because the bracelets did not contain lewd speech and did not threaten to substantially disrupt the school environment. The EASD appealed.
On appeal EASD argued that it was allowed to ban the wearing of the bracelets because they were lewd, vulgar, profane, or plainly offensive student speech. Under the precedent established by the Supreme Court in Tinker v. Des Moines Independent Community School District, school officials cannot restrict student speech that would otherwise be protected by the First Amendment unless they can reasonably forecast that the speech would substantially disrupt the school environment or invade the rights of others. Subsequent cases have established three narrow exceptions to that rule. The only one potentially applicable to this case comes from Bethel School District No. 403 v. Fraser, wherein the Supreme Court held that schools may prohibit vulgar, lewd, profane or plainly offensive speech even if that speech would not be so viewed outside of school and even if it would not substantially disrupt the school environment.
In this case, EASD argued that the 'boobies" bracelets were in fact lewd, vulgar, indecent or plainly offensive. However, the Third Circuit concluded that Fraser only applied when speech was clearly lewd. But for speech that was only potentially lewd, other considerations, such as its potential social or political value, might become relevant.
In this particular instance, the Court held that "I ¿ boobies" was not clearly lewd. EASD then asked the Court to extend the Fraser ruling to potentially lewd, vulgar or profane speech that also addresses political or social issues. The Court refused to do so. It concluded that the First Amendment did not allow a school to restrict ambiguously lewd speech that can also plausibly be interpreted as commenting on a social or political issue. The Court reached this decision based on a concurring opinion in Fraser in which two justices who were part of the five justice majority specifically stated that Fraser did not apply to situations involving language not clearly lewd that expressed social or political commentary. The Court found that this concurrence narrowed the scope of the majority opinion which might otherwise have been interpreted as applying to the particular circumstances of this case. Because the bracelets were part of a breast cancer awareness campaign, the court had no difficulty finding that they had plausible social value and were, therefore, protected. The Court then re-emphasized that schools were allowed to restrict plainly lewd speech regardless of whether it could plausibly be interpreted to comment on a political or social issue.
As the final part of its analysis, the court found that EASD had not shown that the presence of the bracelets at school created a substantial threat of disruption of the school environment or invasion of the rights of others. Prior to the bracelet ban, there were no disruptions or inappropriate comments caused by the wearing of the bracelets by several students for several weeks. Subsequent to the ban, there were only two minor incidents reported, one of which may not have in fact occurred and the other of which resulted in the suspension of a student for saying he liked "boobies" and for making an inappropriate gesture. The court found this hardly the kind of record to threaten substantial disruption.
The Court acknowledged that its opinion would require public officials "to make numerous difficult decisions about when to place restrictions on speech in our public schools." Nevertheless, the Court believed it was a necessary undertaking as part of the process of protecting the rights of students and teaching them how to navigate the "marketplace of ideas' on their path to becoming good public citizens.
Judges Hardiman, Chagares, Jordan, Greenaway, Jr., and Greenberg filed a dissenting opinion.
To read the full opinion, please visit http://www.ca3.uscourts.gov/opinarch/112067p.pdf.

Panel (if known):En banc: Sloviter, Chief Judge, McKee, Scirica, Rendell, Ambro, Fuentes, Smith, Fisher, Chagares, Jordan, Hardiman, Greenaway, Jr., Vanaskie, and Greenberg, Circuit Judges

Argument Date: April 10, 2012, Argued en banc February 20, 2013

Argument Location: Philadelphia, Pennsylvania

Date of Issued Opinion: August 5, 2013

Docket Number: No. 11-2067

Decided: affirmed

Case Alert Author: Kathleen D. Tran

Counsel: Keely J. Collins, John E. Freund, III, and Jeffrey T. Tucker, for Appellant; Seth F. Kreimer, Mary Catherine Roper, Molly M. Tack-Hooper, and Witold J. Walczak, for Appellees

Author of Opinion: Judge Smith

Circuit: 3rd Circuit

Case Alert Circuit Supervisor: Mark Anderson

    Posted By: Susan DeJarnatt @ 08/06/2013 02:18 PM     3rd Circuit  

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