Easton boobies case may follow bong hits to Supreme Court

11-24-2013 Pennsylvania:

Legal battle may follow 'bong hits' to Supreme Court.

It was a frigid day in January 2002 when Joe Frederick and a group of fellow Juneau-Douglas High School students hoisted a banner with the cryptic message "Bong hits 4 Jesus" by the side of Glacier Avenue.

Alaska's tiny state capital was enjoying a moment in the limelight as the Olympic torch relay passed through Juneau on its way to the winter games in Salt Lake City.

Principal Deborah Morse already had her eye on the rowdy group of students, who had hurled snowballs and bottles of soda at vehicles in the passing motorcade. The banner was the last straw.

Morse marched across the street, grabbed and crumpled the banner, and told Frederick, a senior with a history of challenging authority, to report to her office, where she summarily suspended him for 10 days.

That decision touched off a test of wills between Juneau school administrators and Frederick, locking both sides in a six-year court battle that deeply divided the community and led to a U.S. Supreme Court opinion limiting students' right to free speech.

Although the landmark ruling vindicated Morse's decision to punish Frederick and gave school officials across the country the power to restrict speech promoting illegal drug use, it was a costly and unsatisfying ending for everyone involved.

"It's kind of like an object lesson in going down the path of choosing to litigate rather than talking to find a resolution," said University of Oregon political science professor James C. Foster, who interviewed many of the players for his book "Bong Hits 4 Jesus: A Perfect Constitutional Storm in Alaska's Capital."

A student free-speech case in the Easton Area School District is entwined with the Juneau case and could follow its path to the Supreme Court.

The school board voted 7-1 last month to ask the Supreme Court to hear its appeal of a decision by the U.S. Third Circuit Court of Appeals, which in August ruled in favor of middle school students Brianna Hawk and Kayla Martinez. The girls sued the district after they were suspended for wearing bracelets that said, "I ♥ boobies! Keep a breast."

Judge D. Brooks Smith wrote that because the "I ♥ boobies!" bracelets promote a social issue — awareness of breast cancer — the message is protected by the First Amendment.

Pennsylvania School Boards Association attorney Stuart Knade said the decision is flawed because it strips school officials of the ability to easily decide what is appropriate for their students and schools.

"It requires school officials to engage in a law school analysis," said Knade, whose association has supported Easton's decision to defend its policy. "We can't ask principals to do that, and we can't ask taxpayers to foot the bill to run it past lawyers every time."

But critics say the appeal's strain on district resources when it faces a $5 million deficit and shortage of personnel is unjustifiable.

"Every couple of dollars counts," said school director Frank Pintabone, who cast the only vote against pursuing the appeal. "I don't care how much money it is — it could be $5 — we're not in a position to spend it."

Pintabone, who campaigned in 2011 in part on a platform of ending the case, said public opinion appears to be strongly against taking the case any further. He said board members have received email messages from across the country since their Oct. 29 vote questioning the decision.

"Not one person has said, 'Please keep fighting this,' " Pintabone said.

Easton, which has eliminated hundreds of jobs over the last few years, has a Dec. 3 deadline to file its petition with the Supreme Court, which hears about 1 percent of petitioned cases. The court would likely decide within six months whether it will take the case, which First Amendment experts say is a distinct possibility.

Easton schools solicitor John E. Freund put the cost of petitioning the Supreme Court at about $15,000, of which taxpayers pay about $3,000. It would add to nearly $80,000 in attorney fees and costs Freund's firm — King, Spry, Herman, Freund & Faul in Bethlehem — has collected from the district and its insurance company for the "I ♥ boobies!" case.

"We look at that as a very small price to pay for a chance to have that decision changed," Freund said. ..Continued.. by Peter Hall, Of The Morning Call