Jon Campisi Aug. 7, 2013, 7:40am


A federal appeals court in Philadelphia has sided with two northeastern

Pennsylvania middle-schoolers who were disciplined for refusing to remove cancer awareness bracelets that contained the phrase “I (heart) boobies!”

In what lawyers representing the plaintiffs called a “groundbreaking decision,” the U.S. Third Circuit Court of Appeals this week upheld an injunction that prevents the Easton Area School District from enforcing a ban on the popular breast cancer awareness bracelet.

“The First Amendment protects schools as a space where students are free to discuss important issues like breast cancer and talk about their bodies in positive terms,” Reggie Shuford, executive director of the Pennsylvania chapter of the American Civil Liberties Union, said in an Aug. 5 statement. “The court’s decision today is an important reminder to school administrators that they can’t punish students for speaking out just because their speech might be uncomfortable or misunderstood.”

Shuford’s organization filed a federal lawsuit in the winter of 2010 on behalf of students Kayla Martinez and Brianna Hawk, who at the time had been attending the Easton Area Middle School.

The girls were suspended for wearing the rubber support bracelets during the school’s Breast Cancer Awareness Day.

In the spring of 2011, U.S. District Judge Mary McLaughlin, of the Eastern District of Pennsylvania, determined that the school district’s ban on the bracelets violated the students’ First Amendment rights.

The judge ultimately issued an injunction preventing the school from enforcing its ban.

The district ended up appealing McLaughlin’s decision, arguing that the slogan on the bracelet, which used the heart symbol instead of the word “love” in between “I” and “boobies,” could be misinterpreted as lewd language that could be offensive to some.

The Third Circuit ended up granting an en banc review of the matter, what the ACLU called a “rare move.”

Oral arguments took place before the appeals judges back in February, the record shows.

Nine of the 14 Third Circuit judges who heard the case agreed with McLaughlin that the district’s ban violated the students’ rights to free speech.

In the lengthy, 74-page decision, the Third Circuit majority wrote that while the judges recognize the challenges faced by school districts when it comes to making difficult decisions involving speech restrictions in educational settings, schools “cannot avoid teaching our citizens-in-training how to appropriately navigate the ‘marketplace of ideas.’”

“Just because letting in one idea might invite even more difficult judgment calls about other ideas cannot justify suppressing speech of genuine social value,” the Aug. 5 decision reads.

The Third Circuit judges wrote that the trial court did not abuse its discretion by enjoining the district from enforcing its ban on the bracelets.

“The School District argues that the injunction eliminates its ‘authority to manage its student population’ and thus harms the public,” the decision states. “Again, that hyperbolic protest ignores the narrow breadth of the injunction, which address only the constitutionality of the bracelet ban under the facts of this case.”

The judges additionally wrote that allowing a school district’s unconstitutional speech restriction to continue “vindicates no public interest.”

The five appellate judges who disagreed filed a dissenting opinion in which they assert that the majority’s holding that pre-teens have a constitutional right to don bracelets with the phrase “boobies” on them in school is inconsistent with the U.S. Supreme Court precedence whereas free speech is concerned.

“In light of the Majority’s approach, school districts seeking guidance from our First Amendment jurisprudence in this context will find only confusion,” reads the dissent, which was penned by Judge Thomas Hardiman. “I cannot adhere to this approach.”

The other four dissenting judges were Michael A. Chagares,  Kent A. Jordan, Joseph A. Greenway, Jr., and Morton I. Greenberg.

Those representing the plaintiffs, however, were pleased with the en banc panel’s decision.

“The majority’s opinion recognizes that teens, like adults, must be free to speak and learn about important issues that affect them,” ACLU attorney Mary Catherine Roper, who argued the case before the Third Circuit, said in a statement. “Even issues, like breast cancer, that make school administrators uncomfortable.”

According to the ACLU of Pennsylvania, the case marked the first time a federal appeals court has ruled that student speech involving political or social issues is protected by the First Amendment of the U.S. Constitution, even if the speech in question could be viewed as lewd by some people.

The majority opinion was written by Chief Judge Theodore A. McKee.

The other judges that made up the majority in the en banc panel were Judges Dolores Sloviter, Anthony J. Scirica, Marjorie O. Rendell, Thomas L. Ambro, Julio M. Fuentes, D. Brooks Smith and D. Michael Fisher.

Counsel for the school district included attorneys with the Bethlehem, Pa. law firm of King, Spry, Herman, Freund & Faul.

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