Easton settles Boobies costs for $385,000

9-29-2014 Pennsylvania:

Easton Area School District has agreed to pay $385,000 to attorneys who successfully challenged the district's policy banning breast cancer awareness bracelets with the slogan "I ♥ Boobies!"

The settlement with the American Civil Liberties Union of Pennsylvania ends nearly four years of legal action on behalf of two former middle-school students who challenged the policy after being threatened with discipline in October 2010 for wearing the popular rubber wrist bands.

Brianna Hawk and Kayla Martinez argued that the ban violated their First Amendment rights to free speech and sued the district in federal court in Philadelphia. U.S. District Judge Mary A. McLaughlin ruled in favor of the girls, and the school district appealed, saying it should have the power to regulate lewd or vulgar messages in school.

After hearing arguments in the case twice, the U.S. 3rd Circuit Court of Appeals found in a 9-5 opinion that the breast cancer awareness message, "I ♥ Boobies! Keep A Breast" is protected by the First Amendment, notwithstanding its potential to offend, because it is a social or political statement.

Encouraged by the dissenting opinion that the decision "entirely eviscerates the school district's authority," Easton officials asked the U.S. Supreme Court to consider the case. The high court announced in March it would not take the appeal.

Under the federal Civil Rights Act, anyone who wins a lawsuit challenging a violation of a civil right such as freedom of expression can ask a judge to award attorney fees and court costs.

ACLU attorney Mary Catherine Roper said Monday her organization and the school district reached an agreement on attorney fees and costs through negotiations, rather than continuing to litigate over what rate and how many hours were appropriate to determine the attorney fees.

Roper said Hawk and Martinez did not seek money in their lawsuit, and that the fees paid by the school district under the settlement agreement will compensate the ACLU for its work on the case.

According to Roper, the district must pay the fees in three installments: $150,000 in a lump sum, to be made within 30 days; $100,000 on Jan. 1; and $135,000 on July 1.

Easton schools solicitor John Freund said the settlement amount is a substantial reduction from the $499,000 the ACLU initially demanded. The entire $385,000 payment to the ACLU will be funded by taxpayers, Freund said. The school district's own legal fees totaled $110,000, and insurance covered 90 percent of that cost, he said.

The fees Easton Area School District will pay in the "Boobies" case are more substantial than in other recent Pennsylvania student-speech cases.

Pocono Mountain School District in 2013 paid $90,000 to lawyers after the 3rd Circuit ruled a fifth-grade girl's First Amendment rights were violated when school officials refused to let her hand out invitations to a church Christmas party.

A federal court in Scranton awarded $246,048 in fees and $29,403 in costs to the ACLU after the 3rd Circuit ruled in 2010 that Blue Mountain School District officials violated an eighth-grade girl's rights by suspending her after she lampooned her principal on a Myspace page she created. ..Source.. by Peter Hall