August 5, 2013
In a groundbreaking decision today, the U.S. Court of Appeals for the Third Circuit upheld an injunction preventing the Easton Area School District (EASD) from enforcing a ban on popular breast cancer awareness bracelets that read, “i (heart) boobies! (KEEP A BREAST).”
The American Civil Liberties Union of Pennsylvania filed suit in November 2010 on behalf of Kayla Martinez and Brianna Hawk, then seventh and eighth graders, respectively, at Easton Area Middle School, who were suspended for wearing the rubber bracelets on the school’s Breast Cancer Awareness Day. In April 2012, Judge Mary McLaughlin of the U.S. District Court for the Eastern District of Pennsylvania ruled that EASD’s ban violated the students’ First Amendment right to free speech and issued an injunction preventing the school from enforcing its ban.
“The First Amendment protects schools as a space where students are free to discuss important issues like breast cancer and talk about their bodies in positive terms,” said Reggie Shuford, executive director of the ACLU of Pennsylvania. “The court’s decision today is an important reminder to school administrators that they can’t punish students for speaking out just because their speech might be uncomfortable or misunderstood.”
The school appealed the injunction, arguing that the school should be able to ban the breast cancer bracelets because their slogan could be misinterpreted as “lewd” and might offend some in the school community. EASD also argued that school officials were justified in banning the bracelets out of concern that they might disrupt school activities. In a rare move reflecting the important and complex First Amendment issues in the case, the court of appeals granted en banc review so that the full court of appeals – rather than the three-judge panel that typically hears each appeal – could weigh in on the case.
In February 2013, Mary Catherine Roper of the ACLU of Pennsylvania argued the plaintiffs’ case before 14 judges on the court of appeals. Nine of the judges who heard the appeal agreed with the trial judge that the bracelets are not “plainly lewd” and that EASD violated the First Amendment when it suspended two middle school students for wearing the bracelets in school.
“The majority’s opinion recognizes that teens, like adults, must be free to speak and learn about important issues that affect them. Even issues, like breast cancer, that make school administrators uncomfortable,” said Roper.
The decision today marks the first time a federal court of appeals has ruled that student speech that is plausibly understood as commenting on political or social issues is protected by the First Amendment even if it contains language that could be considered lewd by some.
The students are represented by Witold Walczak, Roper, and Molly Tack-Hooper of the ACLU of Pennsylvania and Seth Kreimer of the University of Pennsylvania School of Law.
More information about the case, including copies of the lawsuit and today’s decision, is available at: