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
September 29, 2014
Easton settles Boobies costs for $385,000
January 23, 2014
Boobies Case Decision
1-23-2014 Pennsylvania:
This case arises out of a controversy between Fort Wayne Community Schools (Defendant) and a student, J.A. (Plaintiff), over a bracelet bearing the slogan “I ♥ boobies (Keep a Breast).” The school interpreted the bracelet as conveying a lewd, vulgar, obscene, or plainly offensive message and confiscated it from Plaintiff when she wore it at school. Plaintiff argues that the bracelet promotes a positive breast cancer awareness message and that the school’s ban violates the First Amendment’s free speech protections. She seeks a permanent injunction allowing her to wear the bracelet at school.
The parties agreed that the trial on the merits should be advanced and consolidated with the preliminary injunction hearing pursuant to Fed. R. Civ. P. 65(a)(2). They introduced evidence in the form of depositions and exhibits and submitted trial briefs. The Court also held a hearing to allow the parties to present their arguments orally.
The Court has reviewed all submissions and has considered all the arguments. Giving deference to the school as it must, the Court finds that Defendant’s interpretation of the bracelet as lewd or vulgar is reasonable.
Therefore, the Court denies Plaintiff’s request for a declaratory judgment and permanent injunction.
... .... ...
CONCLUSION
Running one of the largest school corporations in the state is a difficult task. The last thing Fort Wayne Community Schools needs is for an outsider from a courthouse to scrutinize every move in the schoolhouse. The evidence in the record demonstrates that Defendant prohibited the bracelet based on a reasonable belief that it was lewd, vulgar, obscene or plainly offensive.
Therefore, this Court must defer to Defendant’s judgment and deny Plaintiff’s motion for a permanent injunction.
The Court denies Plaintiff’s motion for declaratory judgment and permanent injunction (DE17). The Clerk is ordered to enter judgment in favor of Defendant. ..Source..
November 24, 2013
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
October 30, 2013
Pennsylvania school district votes to appeal 'I (heart) Boobies!' bracelet ruling to Supreme Court
See earlier reports: HERE and HERE and HERE10-30-2013 Pennsylvania:
The court battle between two girls and their Pennsylvania school over "I (heart) Boobies!" bracelets could be settled by the U.S. Supreme Court.
The Easton Area School District board voted 7-1 Tuesday night to appeal a federal appeals court's decision that rejected its claim the bracelets are lewd and should be banned from school.
The case started in 2010 when two girls, then ages 12 and 13, challenged the school's ban on the bracelets designed to promote breast cancer awareness among young people.
The students, Brianna Hawk and Kayla Martinez, said they merely hoped to promote awareness of the disease at their middle school. They filed suit when they were suspended for defying the ban on their school's Breast Cancer Awareness Day.
In August, the 3rd U.S. Circuit Court of Appeals upheld a lower court's decision in favor of the girls, saying also that the district didn't prove the bracelets are disruptive.
Superintendent John Reinhart told The Express-Times of Easton he supports the board's decision.
"The Third Circuit Court has compromised administrators' abilities to intervene in what is and what is not appropriate in school," he said.
In court sessions, Reinhart had called the bracelets "cause-based marketing energized by sexual double-entendres."
An attorney for the American Civil Liberties Union, which helped the girls challenge the rule, said Tuesday night the school had been hinting that it would petition the Supreme Court.
"I'm just really surprised that they're so determined to fight this speech case of all speech cases," said Mary Catherine Roper. "(The bracelets) didn't cause any problems in the school."
School district solicitor John Freund said the district had the backing of the National School Boards Association and the Pennsylvania School Board Association. He said they and other organizations are "concerned about the implications of a hyper-sexualized environment," The Express-Times reported.
The lone board member to vote against the appeal said the district should just drop the matter.
"I think we should be done with it. Let it go. We lost 20, 30 times, I don't even know anymore," Pintabone said.
Easton is one of several school districts around the country to ban the bracelets, which are distributed by the nonprofit Keep A Breast Foundation of Carlsbad, California. ..Source.. by The Republic
August 21, 2013
Judge sides with FWCS on boobies bracelet ban
8-21-2013 Pennsylvania:
Says maturity levels at school affect meaning
When a male student wearing an “I (heart) boobies” bracelet began harassing female students at North Side High School, Fort Wayne Community Schools (FWCS) administrators drew the line.
Wearing the bracelet, the student would repeat its slogan to girls, and the district banned the little rubber bangles from the arms of students at the school.
Three months later, a then-sophomore girl, identified in court documents as J.A., began wearing the bracelet, knowing they were banned. By March 2012, school administrators took her bracelet away and a lawsuit was filed by the ACLU.
The girl argued that the bracelet, and the right to wear it, was protected as free speech under the Constitution. The girl’s mother was a breast cancer survivor, and the bracelet was worn to raise awareness and show support.
School officials, though, argued the bracelets were in the same vein as others they confiscated that suggested students “(expletive deleted) off” or ask about each other’s sex organs. The bracelets were worn merely for the students to find another reason to say the word “boobies,” which apparently they did not need, according to court documents.
At a hearing in June, the girl’s attorneys argued the school’s ban on the bracelets was unconstitutional and asked U.S. District Judge Joseph VanBokkelen to prevent enforcement of the ban.
After nearly two months’ deliberation, the judge ruled Tuesday that Fort Wayne Community Schools administrators could enforce the ban at North Side High School.
The judge’s ruling came a day after he agreed to consider a case from the U.S. 3rd Circuit Court of Appeals in Pennsylvania. The recent higher court ruling found, in a split decision, it was unreasonable to interpret the bracelet’s message as vulgar.
In his ruling, VanBokkelen took issue with the plaintiff’s argument that high school students are mature enough to be exposed to the slogan on the bracelets.
“Yet high school is not a magical place where students leave behind a sexually charged middle school environment and automatically become mature adults,” VanBokkelen wrote.
“The evidence in the record reveals a low maturity level at the school. … The school could therefore reasonably conclude that the bracelet contained sexual innuendo that was vulgar within the context of North Side High School.”
And, VanBokkelen wrote, it wasn’t just middle school students who found the bracelets’ slogan sexually suggestive.
“The ‘Keep a Breast Foundation’ has denied requests from ‘truck stops, … vending machine companies, and pornographers to sell the bracelet,’ ” he wrote. “Clearly, the breast cancer awareness message does not eliminate the vulgar meaning behind ‘I (heart) boobies.’ ”
FWCS spokeswoman Krista Stockman said the district is pleased with the court’s decision, always believing their actions were appropriate.
Indiana ACLU legal director Ken Falk said they were disappointed with the ruling, which ends the case, and had not determined whether they would appeal the decision. ..Source.. by Rebecca S. Green
August 16, 2013
Circuit court sent clear message in “Boobies” case
8-16-2013 Pennsylvania:
It is a legal commonplace that courts generally should defer to the judgments of local school officials on matters of school operations and discipline. Yet a case Hawk v. Easton Area School District might call even the most common of commonplaces into question.
Hawk v. Easton will enjoy a short-lived celebrity status as the “I [heart] Boobies!” case. But it is only the latest installment of “principal-ed” overreaction to potentially controversial student speech. The Third Circuit came to the right conclusion, but it took a long way round the doctrinal barn to get there.
In the case, several middle-school students (all girls) in Easton, Pennsylvania, wore to school bracelets that bore the message “I [heart] Boobies! (KEEP A BREAST).”
Sponsored by the Keep A Breast Foundation, the bracelets are meant to raise awareness of breast cancer—and to do so in a manner that young people will “get.” (Personal disclaimer: My daughters display a “Save the Tatas” slogan on various wardrobe items. This message is also forbidden at Easton Area Middle School.)
In a nice twist of puritanical irony, on the day before the school was to observe Breast Cancer Awareness Month, the assistant principal used the word “boobies” to announce a ban on bracelets containing the word “boobies.”
A student made the same proclamation on the school’s television station. When the bracelet-wearing girls refused to comply, they were punished with in-school suspension and were forbidden to attend the school’s Winter Ball.
So, once again, a court was asked “to find the balance between a student’s right to free speech and a school’s need to control its educational environment.” This is not untrammeled judicial territory.
High-school students enjoy a precarious constitutional status. While they do not, as it is famously said, “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” their First Amendment rights as students must be “applied in light of the special characteristics of the school environment.”
Supreme Court ruling on students and speech
Four notable Supreme Court cases have some possible application to the Easton case:.
Schools may restrict student speech when 1) it threatens a substantial disruption to the school environment or invades the rights of others (Tinker v. Des Moines, 1969); 2) it is vulgar, lewd, profane, or plainly offensive (Bethel v. Fraser, 1986); 3) it is sponsored by the school and is inconsistent with the school’s educational mission (Hazelwood v. Kuhlmeier, 1988); or 4) it advocates drug use (Morse v. Frederick, 2007). Though first in this line of cases, Tinker is really the high-water mark of student speech rights. The subsequent cases each carve out a narrow category of speech that a school may restrict even without the threat of substantial disruption.
The “boobies” bracelet could only be restricted under Tinker or Fraser. Yet about the only evidence of disruption was the proud assertion of one middle-school boy—presumably made in solidarity with his bracelet-wearing classmates—that he too loved boobies.
Under Tinker, restrictions on student speech must be justified by more than “an undifferentiated fear or remote apprehension of disturbance”—and Easton did not have even this.
The school district made a feeble effort to evoke Tinker’s second prong—upholding restrictions on speech that invades the rights of others—but failed to show how the bracelets could breed an environment of pervasive and severe harassment. So, it was Frasier or bust for Easton.
The Third Circuit spent most of its energy, and its readers’ patience, arguing that the holding of Fraser had been limited by the concurring opinions of Justices Anthony Kennedy and Samuel Alito in Morse.
This led the court, with Judge Smith writing for the majority, to the proposition that “schools may restrict ambiguously lewd speech only if it cannot plausibly be interpreted as commenting on a social or political matter.”
In other words, under Fraser, school officials may proscribe plainly lewd speech categorically, regardless of whether it comments on political or social issues; under Fraser + Morse, however, they may not proscribe ambiguously lewd speech if it could plausibly be interpreted as commenting on a social or political issue, even if a reasonable observer (say, a reasonable school official) might find it lewd (or vulgar, indecent, or plainly offensive).
Having lavished more than 6,000 words on the “narrowest question” doctrine, the court decided that the “boobies” slogan was not plainly lewd and it could plausibly be understood as commenting on a social issue. Thus, the bracelet ban, it turns out, was “an open-and-shut case.”
Court rejects slippery slope argument
The court rejected the school district’s slippery slope argument that “I [heart] Boobies!” would marshal in a parade of “more egregiously sexualized advocacy campaigns, which the schools will be obliged to allow.”
The court was more concerned about a slippery slope of school censorship. It was hardly comforted when school officials “initially testified that they could ban the word ‘breast,’ even if used in the context of a breast-cancer-awareness campaign, because the word, by itself, ‘can be construed as [having] a sexual connotation.’”
The majority opinion did not go uncontested. In dissent, Judge Hardiman nicely shredded the majority’s Fraser-Morse engrafting job. He went on to conclude that the judgment of the school officials was objectively reasonable.
The “I [heart] Boobies!” slogan could “reasonably be interpreted as inappropriate sexual double entendre.” “In the middle school context,” Hardiman wrote, “the phrase can mean both ‘I support breast-cancer-awareness measures’ and ‘I am attracted to female breasts.’” Also writing in dissent, Judge Greenaway bemoaned the lack of guidance provided by the “amorphous test” of the majority opinion.
This is all quite an unnecessary muddle. Fraser proscribed speech that was “plainly offensive” because it was lewd and vulgar—period; it made no concession to lewdness or vulgarity in the service of public discourse; it made no mention of a reasonableness standard with regard to speech that is ambiguously lewd or vulgar; and Morse adds nothing—Judge Hardiman gets this right—to the offensiveness calculation.
Fraser involved an “elaborate, graphic, and explicit” sexual speech that was 1) delivered at “a school-sponsored educational program in self-government ” and 2) directed toward an unsuspecting and captive audience. The speech was, so the Fraser Court said, “plainly offensive to both teachers and students”; and, by “glorifying male sexuality,” it was “acutely insulting to teenage girl students.” This was hardly the “nondisruptive and passive expression of a political viewpoint” protected by Tinker.
Against this precedent, the bracelet ban should have been an open-and-shut case.
The bracelets were not plainly lewd or vulgar; indeed, they were, under Fraser, unambiguously not lewd or vulgar. The actual slogan—with “I [heart] boobies!” modified by the phrase “(KEEP A BREAST)”—is clearly a message designed to promote breast cancer awareness. (That may explain why school officials first disciplined the girls for “disrespect” and “defiance,” without reference to inappropriate speech.) The district court was entirely correct—and admirably succinct—on this point.
The Supreme Court has made neither the possibility of student tittering nor the prurience of school officials a measure of students’ free speech rights. The authority to restrict student speech is not a license to control whatever might be perceived as disrespectful or to enforce antiquated notions of female virtue. It ought to be long past the time when school officials got this unambiguous message. ..Source.. by Jeffrey Shulman teaches at Georgetown Law. His book The Constitutional Parent: Rights, Responsibilities, and the Enfranchisement of the Child is forthcoming from Yale University Press.
February 2, 2010
Breast cancer bracelets cause stir at middle school
2-2-2010 California:
SANTA CLARA, CA (KGO) -- A breast cancer awareness bracelet is causing controversy at a Santa Clara middle school. Administrators say it is a good cause, but the message on the bracelets is distracting the students.
"This one, it starts out, it says, 'I love boobies,'" 13-year-old Sarah Garaci explained. "And then it says 'Keep a breast.'"
Garaci has not taken her bracelet off since she got it as a Christmas gift. But, soon she might have to.
"One of my other teachers, I asked her, 'What do you think of the bracelet?' She told me it was demeaning and offensive, and people were making fun of breast cancer," Garaci says.
For the students at Santa Clara Middle School, the bracelets have become something fun to collect. Both the boys and the girls wear them. They wear multiple bracelets on their arms and they even trade them.
But, Bucsher administrators say some boys were taking the message a little too seriously and harassing female students. So, school officials told students they could no longer wear the bracelets on campus.
School board member Andrew Ratermann said, "We would be fully supportive of the concept of wanting to do something about breast cancer. But, I think the makers of the bracelets chose intentionally to start a controversy because of the words they used."
"I completely support it," says Sarah's mom Karen Garaci. "I don't want my daughter to die of breast cancer."
A portion of the sales go to breast cancer awareness and with friends who have had breast cancer, it is a cause Sarah's mother supports so much that now, the whole family wears the bracelets.
"I got angry because that hit really close to home, considering my mom passed away from breast cancer," says family friend Ashley House.
"I thought it was a fun message and I thought it would get the awareness out in an easy way," Karen Garaci says. "Instead of saying, 'Look, breast cancer's going to kill you. Do your exams.' Here, I love boobies. Let's save them and make it approachable for her age group."
"I'm still going to wear the bracelet. It actually has a good cause to it. It has a good meaning," Sarah says. ..Source.. ABC News
