H. v. Easton Area Sch. Dist.
| Decision Date | 12 April 2011 |
| Docket Number | Civil Action No. 10–6283. |
| Citation | 279 Ed. Law Rep. 655,827 F.Supp.2d 392 |
| Parties | H., et al. v. EASTON AREA SCHOOL DISTRICT. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Mary Catherine Roper, Martha M. Tack-Hooper, ACLU of Pennsylvania, Seth Kreimer, Philadelphia, PA, Witold J. Walczak, ACLU of Pennsylvania, Pittsburgh, PA, for H., et al.
John E. Freund, III, Jeffrey T. Tucker, King, Spry, Herman, Freund & Faul, LLC, Bethlehem, PA, for Easton Area School District.
This case involves a middle school's ban on breast cancer awareness bracelets that bear the slogan “I Boobies (Keep A Breast)” and similar statements. These bracelets are distributed by the Keep A Breast Foundation, which operates breast cancer education programs and campaigns that are oriented toward young women. On the school's designated breast cancer awareness day, two female students defied the school's bracelet prohibition and both were suspended for a day and a half and prohibited from attending an upcoming school dance. The students, by and through their parents, filed this law suit seeking, among other things, a preliminary injunction to enjoin the school district from enforcing the ban.
The plaintiffs argue that the school has violated their First Amendment right to freedom of speech. The two Supreme Court cases examining student speech that are most relevant to this case are Fraser and Tinker. See Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Fraser allows schools to ban speech that is lewd or vulgar. If the speech does not meet the standard of Fraser, Tinker applies. Tinker forbids the suppression of student expression unless that expression is reasonably foreseen as a material and substantial disruption of the work and discipline of the school. The school district contends that the bracelets are lewd and vulgar under Fraser and if not, that they caused a substantial disruption of school operations under Tinker or the School District had a reasonable expectation of such disruption.
The Court concludes that these bracelets cannot reasonably be considered lewd or vulgar under the standard of Fraser. The bracelets are intended to be and they can reasonably be viewed as speech designed to raise awareness of breast cancer and to reduce stigma associated with openly discussing breast health. Nor has the school district presented evidence of a well-founded expectation of material and substantial disruption from wearing these bracelets under Tinker. The Court will therefore grant the plaintiffs' motion for preliminary injunction.
On November 15, 2010, the plaintiffs filed this law suit and a motion for a temporary restraining order and preliminary injunction. The plaintiffs' motion sought a temporary restraining order allowing the plaintiffs to attend the upcoming “Snow Ball” middle school dance, which the school had prohibited the plaintiffs from attending as punishment for wearing their breast cancer awareness bracelets, along with one and a half days of in-school suspension.
The Court held a telephone conference with counsel for the parties and urged the school to allow the students to attend the school dance with the option of imposing comparable punishment if the Court held that the ban was constitutional. The school agreed to the Court's proposal. The Court then denied the motion for a temporary restraining order without prejudice.
On December 16, 2010, the Court held a day-long evidentiary hearing. At the hearing, the Court heard testimony from the two minor plaintiffs, B.H. and K.M.; Kimberly McAtee, a representative from the Keep A Breast Foundation; Stephen Furst, the Director of Teaching and Learning for the Easton Area School District; Anthony Viglianti, the Seventh Grade Assistant Principal; Amy Braxmeier, the Eighth Grade Assistant Principal; and Angela DiVietro, the Head Principal of Easton Area Middle School for grades seven and eight. On February 18, 2011, the Court held oral argument on the plaintiffs' motion.
This case involves two students, B.H. and K.M., who are currently enrolled in the Easton Area Middle School. B.H. is a thirteen-year-old, eighth grade student at Easton Area Middle School. K.M. is a twelve-year-old, seventh grade student at Easton Area Middle School. The defendant Easton Area School District (the “School District”) is a political subdivision of the Commonwealth of Pennsylvania.
Easton Area Middle School (the “Middle School”) is a large complex that holds two separate schools: a fifth and sixth grade school and a seventh and eighth grade school. The fifth and sixth grade school has a separate entrance, separate classrooms, separate lunchrooms, and is administered separately from the 7–8 building. The plaintiffs attend classes in the Middle School's 7–8 building. (N.T. 153:2–154:5.)
The bracelets at issue in this case include several colored rubber bracelets that contain various slogans including , , and a bracelet with an amalgam of similar slogans.2 The web address for the Keep A Breast Foundation, keep-a-breast.org, is contained on the inside of all of the bracelets. ( See Pls.' Ex. 39, 40.)
The Keep A Breast Foundation (the “Foundation”), a 501(c)(3) nonprofit organization, distributes these bracelets. The Keep A Breast Foundation operates breast cancer education programs and campaigns that are oriented towards young women. The bracelets serve as an awareness and fund-raising tool for the Foundation. The Foundation targets its awareness efforts to young women under 30. One of the goals of the Foundation is to educate young women about breast cancer and to help young women discuss breast health openly with their doctors. The Foundation encourages young women to establish a baseline knowledge of how their breasts feel in order to improve their ability to detect changes in their breasts. Breast cancer prevention and health information is available by clicking on the health page of the Foundation's website. (N.T. 105:21–24, 120:19–121:2, 121:3–6.)
The Keep A Breast Foundation believes that a barrier to achieving their goals is negative body images among young women. Young women may feel that a stigma is associated with touching, looking at, or talking about their breasts. The Foundation's “I > Boobies!” campaign seeks to reduce this stigma and to help women talk openly and without embarrassment about their breasts. The bracelets are intended to be and may be reasonably viewed as conversation starters to facilitate discussion of breast cancer, and to help overcome fear and taboo associated with discussing breast health. 3 (N.T. 98:9–20.)
The Foundation controls the distribution of the bracelets to ensure that the purchaser will have access to the Keep A Breast Foundation's educational materials. Truck stops, convenience stores, vending machine companies, and even “porn stars” have expressed interest in selling or being associated with the bracelets and the Foundation, but the Keep A Breast Foundation has rejected these requests. (N.T. 101:18–102:13.)
The plaintiffs purchased their bracelets with their mothers prior to the start of the 2010–11 school year. B.H. learned about the bracelets and their purpose from her friends. B.H. and her mother Jennifer Hawk sought out the bracelets together, making multiple attempts to find them in stores. After purchasing the bracelets, B.H. wore them every day, up until her suspension. By purchasing and wearing the bracelets, B.H. wanted to show her support for breast cancer prevention, raise awareness and initiate dialogue about breast cancer, and support the Keep A Breast Foundation's breast cancer prevention programs. B.H. also wanted to honor a close friend of the family who survived the disease after undergoing a double mastectomy. (N.T. 22:6–21, 56:12–15, 22:13–15, 22:15–21, 23:4–17, 26:1–5, 27:20–22, 23:18–24:23, 24:1–20, 43:1–10.)
K.M. first learned about the bracelets over the summer of 2010 from her friend B.H. Before the school year started, K.M. and her mother Amy McDonald–Martinez traveled together to the mall to purchase bracelets. After purchasing the bracelets, K.M. wore them every day, up until her suspension. K.M.'s mother, Amy McDonald–Martinez, also wore a Keep a Breast Foundation bracelet that contained the phrase
Both young women researched and learned more about breast cancer after purchasing these bracelets. B.H. learned about the Keep A Breast Foundation through in-store displays and the Foundation's website. After purchasing the bracelets, K.M. sought out more information about breast cancer, and learned that the youngest girl diagnosed with breast cancer was ten years old. She also learned about breast cancer risk factors, the effects of breast cancer, and how to check one's self for lumps. She learned about her great aunt who had breast cancer and that breast cancer “can run in the family.” Both B.H. and K.M. believe that the bracelets more effectively raise awareness for breast cancer than the color pink. B.H. explained that “no one really notices [the color pink].” (N.T. 42:12–25, 60:11–23, 74:3–10, 56:25–58:12, 91:22–92:6, 24:12–23, 64:24–66:4, 24:12–23.)
The bracelets became popular with students at the Easton Area Middle School during the beginning of the 2010–2011 school year, which began on August...
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...when they disciplined them for posing in sexually suggestive photos that they posted on Facebook); H. v. Easton Area Sch. Dist., 827 F. Supp. 2d 392, 394–95 (E.D. Pa. 2011) (ruling that a school violated a student’s First Amendment rights by punishing him for wearing an “I Ɔ Boobies!” brace......