U.S. Supreme Court declines to hear appeal in 'I [heart] Boobies' case; Third Circuit ruling stands

By Jon Campisi | Mar 10, 2014

The U.S. Supreme Court has denied certiorari in a northeastern

Pennsylvania case that challenged a school district’s decision to discipline two middle school girls for wearing breast cancer awareness bracelets containing the phrase “I [heart] boobies.”

The high court this week said it would not hear a challenge to a Third Circuit Court of Appeals ruling that overturned the Easton Area School District’s ban that sought to bar students from wearing the bracelets in class.

This past summer, the federal appeals court sided with middle-schoolers Kayla Martinez and Brianna Hawk, who sued the district in 2010 claiming that the bracelet ban violated their free speech rights.

A lower court judge, Mary McLaughlin, of the Eastern District of Pennsylvania, sided with the plaintiffs when the civil rights lawsuit came before her in 2011.

The Third Circuit, hearing the case en banc as opposed to its usual three-judge panel, determined that McLaughlin was correct to side with the students, determining that the school district overstepped its bounds with its blanket ban on the bracelets, which are designed to raise awareness of breast cancer.

The appeals judges ruled that the bracelets couldn’t be banned because they are not plainly lewd and that because they comment on an issue of social importance, they could only be banned if they presented a substantial and material disruption at school.

The school district subsequently petitioned the Supreme Court to hear its appeal.

The high court’s denial effectively ends the case.

“I am happy we won this case, because it’s important that students have the right to stand up for a cause and try to make a difference. We just wanted to raise awareness about breast cancer,” Hawk, one of the plaintiffs, said in a statement provided by the American Civil Liberties Union of Pennsylvania, which represented her and Martinez.

Hawk was then an eighth-grader and Martinez a seventh-grader when the two were suspended in the fall of 2010 for wearing the bracelets, deemed inappropriate by school administrators.

“This whole experience has taught me that speaking up about issues that really matter to young people really makes a difference, even if you’re only in seventh grade,” Martinez said in a statement.

The ACLU of Pa. noted that this case represents the first time a federal appeals court ruled that student speech that is plausibly understood as commenting on political or social issues is protected by the First Amendment, even if the speech contains language that could be considered to be lewd by some.

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

Reggie Shuford, executive director of the ACLU of Pa., said that the Supreme Court’s decision declining to hear the appeal is a reminder to school district’s that they can’t punish students simply for speaking out just because their speech might be “uncomfortable or misunderstood.

“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,” Shuford said in a statement.

John Freund, an attorney representing the school district, told the Express-Times newspaper of Easton that he was disappointed the high court declined to hear the case.

“Local school authorities need the ability to enforce dress codes and maintain reasonable decorum of the manner of expression in an educational environment, while respecting the legitimate rights of students to express themselves,” Freund was quoted as saying.

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