Easton School Dist. to appeal 'I [heart] Boobies' free speech case to U.S. Supreme Court

By Jon Campisi | Oct 31, 2013

A northeastern Pennsylvania school district has reportedly decided to

A northeastern Pennsylvania school district has reportedly decided to

appeal to the United States Supreme Court a Third Circuit U.S. Court of Appeals decision overturning a district ban that sought to bar students from wearing “I [heart] Boobies” breast cancer awareness bracelets.

The Express-Times newspaper reported Wednesday that the Easton Area School District voted Tuesday evening 7-1 to authorize the district’s solicitor to file a petition with the U.S. Supreme Court seeking to have the high court hear arguments in the case, which generated national media attention.

The paper quoted district Superintendent John Reinhart as saying that he is in full support of the decision to appeal the Third Circuit’s decision to the highest court in the land.

“The Third Circuit Court has compromised administrators’ abilities to intervene in what is and what is not appropriate in school,” Reinhart said, according to the newspaper.

School Board member Frank Pintabone, the lone dissenter, was quoted in the Express-Times as saying that the district should drop the case.

“I think we should be done with it,” he reportedly said. “Let it go. We lost 20, 30 times, I don’t even know anymore.”

Back in August, the Pennsylvania Record reported that the Third Circuit Appeals Court, which is based in Philadelphia, sided with two Easton Area School District middle school students who had been disciplined for wearing the cancer awareness bracelets to class.

In 2010, the American Liberties Union of Pennsylvania filed suit on behalf of the two girls, Kayla Martinez and Brianna Hawk, claiming the bracelet ban violated the students’ free speech rights.

U.S. District Judge Mary McLaughlin, of the Eastern District of Pennsylvania, sided with the plaintiffs when the case came before her a year later.

But the case didn’t end with McLaughlin’s injunction prohibiting the district from enforcing the ban; district lawyers filed an appeal with the Third Circuit, arguing that the bracelet’s slogan, which had a heart symbol in place of the word “heart,” could be misinterpreted as lewd language and could be offense to some students and faculty.

The Third Circuit, which granted an en banc review of the matter, ended up upholding McLaughlin’s decision, writing in a lengthy, 74-page opinion that while the appeals judges recognize the challenges faced by school districts when it comes to making tough decisions involving speech restrictions, schools “cannot avoid teaching our citizens-in-training how to appropriately navigate the ‘marketplace of ideas.’”

Nine of the 14 Third Circuit judges who heard the case agreed with McLaughlin that the district overstepped its bounds with its ban on the bracelets.

“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 Third Circuit had written.

John Freund, the solicitor for the Easton Area School District, did not immediately return a message seeking comment Wednesday.

The Express-Times reported that Freund said that various organizations, such as the National Association of School Psychologists, the National School Boards Association and the Pennsylvania School Board Association, are backing the district’s decision to appeal to the U.S. Supreme Court.

In an email to the Pennsylvania Record, however, Katherine C. Cowan, director of communications for the National Association of School Psychologists, said that, “we did not say this to Mr. Freund or anyone else at the law firm or school district.

“In fact, we expressly told them, after reviewing the specifics of the case, that [we] did not support their position,” Cowan wrote.

Freund was quoted in the newspaper as saying that the case has a “reasonable chance of being selected, of course, in an environment that has many petitions and few cases heard.”

Freund told the paper that the cost to the district to petition the high court review, between $2,000 and $3,000, would be covered by the district’s insurance policies.

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