B.H. v. Easton Area Sch. Dist., 11-2067
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
| Writing for the Court | SMITH |
| Parties | B.H., A MINOR, BY AND THROUGH HER MOTHER; JENNIFER HAWK; K.M., A MINOR BY AND THROUGH HER MOTHER; AMY MCDONALD-MARTINEZ v. EASTON AREA SCHOOL DISTRICT, Appellant |
| Docket Number | No. 11-2067,11-2067 |
| Decision Date | 05 August 2013 |
B.H., A MINOR, BY AND THROUGH HER MOTHER; JENNIFER HAWK; K.M., A MINOR BY
AND THROUGH HER MOTHER; AMY MCDONALD-MARTINEZ
v.
EASTON AREA SCHOOL DISTRICT, Appellant
No. 11-2067
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Argued on April 10, 2012
Rehearing En Banc Ordered on August 16, 2012
Argued En Banc February 20, 2013
Opinion filed: August 5, 2013
Page 2
Keely J. Collins
John E. Freund, III [ARGUED]
Jeffrey T. Tucker
King, Spry, Herman, Freund & Faul
Counsel for Appellant
Seth F. Kreimer
University of Pennsylvania School of Law
Mary Catherine Roper [ARGUED]
American Civil Liberties Union of Pennsylvania
Molly M. Tack-Hooper
Berger & Montague
Page 3
Witold J. Walczak
American Civil Liberties Union
Counsel for Appellees
Sean A. Fields
Pennsylvania School Boards Association
Counsel for Amicus Appellant
Wilson M. Brown, III
Kathryn E. Deal
Drinker, Biddle & Reath
Rory Wicks
Gary L. Sirota
Page 4
Amy R. Arroyo
Wayne Pollock
Dechert LLP
Frank D. LoMonte
Laura Napoli
Student Press Law Center
Terry L. Fromson
Carol E. Tracey
Women's Law Project
David L. Cohen
Counsel for Amici Appellees
Page 5
SMITH, Circuit Judge, with whom McKEE, Chief Judge, SLOVITER, SCIRICA, RENDELL, AMBRO, FUENTES, FISHER, and VANASKIE, Circuit Judges join.
Once again, we are asked to find the balance between a student's right to free speech and a school's need to control its educational environment. In this case, two middle-school students purchased bracelets bearing the slogan "I ? boobies! (KEEP A BREAST)" as part of a nationally recognized breast-cancer-awareness campaign. The Easton Area School District banned the bracelets, relying on its authority under Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), to restrict vulgar, lewd, profane, or plainly offensive speech, and its authority under Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), to restrict speech that is reasonably expected to substantially disrupt the school. The District Court held that the ban violated the students' rights to free speech and issued a preliminary injunction against the ban.
We agree with the District Court that neither
Page 6
Fraser nor Tinker can sustain the bracelet ban. The scope of a school's authority to restrict lewd, vulgar, profane, or plainly offensive speech under Fraser is a novel question left open by the Supreme Court, and one which we must now resolve. We hold that Fraser, as modified by the Supreme Court's later reasoning in Morse v. Frederick, 551 U.S. 393 (2007), sets up the following framework: (1) plainly lewd speech, which offends for the same reasons obscenity offends, may be categorically restricted regardless of whether it comments on political or social issues, (2) speech that does not rise to the level of plainly lewd but that a reasonable observer could interpret as lewd may be categorically restricted as long as it cannot plausibly be interpreted as commenting on political or social issues, and (3) speech that does not rise to the level of plainly lewd and that could plausibly be interpreted as commenting on political or social issues may not be categorically restricted. Because the bracelets here are not plainly lewd and because they comment on a social issue, they may not be categorically banned under Fraser. The School District has also failed to show that the bracelets threatened to substantially disrupt the school under Tinker. We will therefore affirm the District Court.
Page 7
A. Factual background
As a "leading youth focused global breast cancer organization," the Keep A Breast Foundation tries to educate thirteen- to thirty-year-old women about breast cancer. Br. of Amicus Curiae KABF at 13. To that end, it often partners with other merchants to co-brand products that raise awareness. And because it believes that young women's "negative body image[s]" seriously inhibit their awareness of breast cancer, the Foundation's products often "seek[] to reduce the stigma by speaking to young people in a voice they can relate to." Id. at 14-15. If young women see such awareness projects and products as cool and trendy, the thinking goes, then they will be more willing to talk about breast cancer openly.
To "start a conversation about that taboo in a light-hearted way" and to break down inhibitions keeping young women from performing self-examinations, the Foundation began its "I ? Boobies!" initiative. Id. at 20-21. Part of the campaign included selling silicone bracelets of assorted colors emblazoned with "I ? Boobies! (KEEP A BREAST)" and "check y?urself! (KEEP A BREAST)." Id. at 21-22. The Foundation's website address (www.keep-a-breast.org) and motto ("art. education. awareness. action.") appear on the inside of the bracelet. Id.
Page 8
As intended, the "I ? Boobies" initiative was a hit with young women, quickly becoming one of the Foundation's "most successful and high profile educational campaigns." Id. at 20-21. Two of the young women drawn to the bracelets were middle-school students B.H. and K.M. They purchased the bracelets with their mothers before the 2010-2011 school year—B.H. because she saw "a lot of [her] friends wearing" the bracelets and wanted to learn about them, and K.M. because of the bracelet's popularity and awareness message. App. 72, 92, 106, 442.
But the bracelets were more than just a new fashion trend. K.M.'s purchase prompted her to become educated about breast cancer in young women. The girls wore their bracelets both to commemorate friends and relatives who had suffered from breast cancer and to promote awareness among their friends. Indeed, their bracelets started conversations about breast cancer and did so far more effectively than the more-traditional pink ribbon. App. 73-74. That made sense to B.H., who observed that "no one really notices" the pink ribbon, whereas the "bracelets are new and . . . more appealing to teenagers." App. 74.
B.H., K.M., and three other students wore the "I ? boobies! (KEEP A BREAST)" bracelets at Easton Area Middle School during the 2010-2011 school year. A few teachers, after observing the students wear the bracelets
Page 9
every day for several weeks, considered whether they should take action. The teachers' responses varied: One found the bracelets offensive because they trivialized breast cancer. Others feared that the bracelets might lead to offensive comments or invite inappropriate touching. But school administrators also believed that middle-school boys did not need the bracelets as an excuse to make sexual statements or to engage in inappropriate touching. See, e.g., Viglianti Test., App. 196, 198 (testifying that such incidents "happened before the bracelets" and were "going to happen after the bracelets" because "sexual curiosity between boys and girls in the middle school is . . . a natural and continuing thing").
In mid- to late September, four or five teachers asked the eighth-grade assistant principal, Amy Braxmeier, whether they should require students to remove the bracelets. The seventh-grade assistant principal, Anthony Viglianti, told the teachers that they should ask students to remove "wristbands that have the word 'boobie' written on them," App. 343, even though there were no reports that the bracelets had caused any in-school disruptions or inappropriate comments.1
Page 10
With Breast Cancer Awareness Month approaching in October, school administrators anticipated that the "I ? boobies! (KEEP A BREAST)" bracelets might reappear.2 The school was scheduled to observe Breast Cancer Awareness Month on October 28, so the day before, administrators publicly announced, for the first time, the ban on bracelets containing the word "boobies." Using the word "boobies" in his announcement, Viglianti notified students of the ban over the public-address system, and a student did the same on the school's television station. The Middle School still encouraged students to wear the traditional pink, and it provided teachers who donated to Susan G. Komen for the Cure with either a pin bearing the slogan "Passionately Pink for the Cure" or a T-shirt reading "Real Rovers Wear Pink."
Later that day, a school security guard noticed B.H. wearing an "I ? boobies! (KEEP A BREAST)" bracelet and ordered her to remove it. B.H. refused. After meeting with Braxmeier, B.H. relented, removed her bracelet, and returned to lunch. No disruption occurred at any time that day.
The following day, B.H. and K.M. each wore their "I ? boobies! (KEEP A BREAST)" bracelets to observe
Page 11
the Middle School's Breast Cancer Awareness Day. The day was uneventful—until lunchtime. Once in the cafeteria, both girls were...
To continue reading
Request your trial