Supreme Court won't hear 'boobies' bracelet case; Third Circuit ruling siding with students stands

PENNSYLVANIA — Pennsylvania students Brianna Hawk and Kayla Martinez won’t have to worry about removing their “I ? boobies! (KEEP A BREAST)” bracelets anytime soon, as the nation’s highest court declined to hear their school district’s latest appeal to ban the accessories.

The United States Supreme Court announced Monday that it would not take up Easton Area School District’s appeal in the case, putting the issue to rest after more than three years. The school district filed its appeal to the Supreme Court in October after district and federal circuit courts ruled against its favor.

The dispute dates back to 2010, when Easton administrators told Hawk and Martinez (then middle school students) that they couldn’t wear the bracelets in school. With the support of their parents, the pair resisted the ban — prompting the school to punish them with in-school suspension for “DISRUPTION, DEFIANCE/DISRESPECT,” according to court documents. The girls’ parents, in turn, sued the school district in November 2010 for violating their daughters’ First Amendment rights.

In April 2011, a federal judge ruled against the school’s decision to ban the bracelets, and the decision was later upheld last year by the Third Circuit Court of Appeals. In that opinion, Circuit Court Judge D. Brooks Smith stressed that school censorship isn’t justified in cases where student speech about political or social issues simply “has the potential to offend.” In doing so, he cited landmark student speech cases Bethel School District v. Fraser, Morse v. Frederick and Tinker v. Des Moines Independent Community School District to support the Easton students’ rights to wear the bracelets.

Mary Catherine Roper, a senior staff attorney with the American Civil Liberties Union of Pennsylvania who has represented the girls from the beginning, said the issue never seemed like one that needed additional clarity from the Supreme Court. The bracelets, she said, are clearly meant to promote breast cancer awareness and are not lewd — exactly the kind of student speech that previous legal precedents have protected.

“I think it’s important for school districts to understand that while obviously they have a job to do — trying to run a school district and keep order and make sure things go smoothly — they’ve got another job, too, which is respecting the rights of their students,” Roper said. “School administrators need to acknowledge that not everything that makes you uncomfortable needs to be censored.”

But attorneys for Easton Area School District and others who’ve sided with the school disagree, saying the rulings thus far are not clear enough and have created additional headaches for school districts across the country.

“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,” Keely Jac Collins, who represented Easton in the case, wrote in an email. “The Third Circuit’s decision in departing from Supreme Court precedent robs educators and school boards of the ability to strike a reasonable balance between a student’s right to creative expression and school’s obligation to maintain an environment focused on education and free from sexual entendre and vulgarity.”

Similarly, National School Boards Association attorney Francisco Negrón, Jr., said he would have liked to see the Supreme Court take on the case to provide additional guidance. NSBA and other school board associations backed Easton’s petition for a Supreme Court review of the case.

The Third Circuit’s decision makes it “very, very difficult for schools to balance free speech rights and messages that might be harmful to students,” Negrón said. The rulings didn’t provide enough guidance to help schools distinguish when a message with a double meaning is social or political in nature, he said.

Shaney jo Darden, whose Keep A Breast Foundation created the bracelets in question, said the accessories were meant simply as a way to “begin a serious conversation” on breast cancer awareness. From the beginning, she said, she was “shocked” when the bracelets became a source of controversy at Easton and elsewhere — “I would never imagine people would be offended by the word ‘boobies’” — but she’s proud of Hawk and Martinez for defending their rights to spread the bracelets’ message.

And despite the calls for additional clarity on the issue, Student Press Law Center Executive Director Frank LoMonte said the courts’ decisions were, in fact, clear in stating that “not every use of a bodily word is fully punishable.” (In 2011, the Student Press Law Center filed a “friend of the court” brief in support of the students.)

“There are double entendres in literature, including in books on the shelves in every school library,” LoMonte said. “Students are not categorically prohibited from referring to parts of the body.”

Schools just need to use common sense in how they respond to that language, he said.

“If someone takes the message the wrong way and acts out, they could punish that person, (but) they can’t kill the messenger,” he said. “The idea that you would resort to suspension for speech that didn’t cause any disturbance and didn’t cause anyone to complain is outlandish.”

LoMonte said he hoped other students take comfort in the courts’ decisions to side with the students.

“I hope the takeaway for other students is that if you feel your rights are being stepped on, the law sometimes will really come to your rescue,” he said.

Hawk, too, said she wants other students to know that they shouldn’t hesitate to stand up for themselves on similar issues or to seek out the help of organizations that are willing to support their fight.

If she’s learned anything from this case, she said, it’s that “it’s OK to stand up for what you believe in.”

And her plans moving forward?

“I think we’ll just keep wearing the bracelets.”

By Casey McDermott, SPLC staff writer. Contact McDermott by email or at (703) 807-1904 ext. 127.