Tuesday, April 12, 2011

"I heart Boobies!" Case Decided/by Jessica Lista

The right to freedom of expression is very important to Americans, which is stated in the Bill of Rights in the United States Constitution. Americans' right to free speech encompasses everything from political speech to hate speech. However, there are limits put on free speech rights including: speech that causes a clear and present danger and speech that is considered obscene. In addition, there are some restrictions when it comes to the First Amendment rights of school children. This issue of regulating student expression has once again come to a head in the case titled B.H. and K.M. v. Easton Area School District (No 10-cv-6283.)

On April 12, 2011, a federal judge ruled in favor of two eighth graders, Brianna Hawk, 12, and Kayla Martinez, 13, of Easton Area School District in this free speech case. U.S. District Judge Mary A. McLaughlin stated, "The bracelets are intended to be and they can reasonably be viewed as speech designed to raise awareness of breast cancer and to reduce the stigma associated with openly discussing breast health" (Moran, The Philadelphia Inquirer.)

Beginning on November 14, 2010, The American Civil Liberties Union of Pennsylvania (ACLU) filed a lawsuit against the Easton Area School District on behalf of two students who believe their free speech rights were violated. The two eighth graders, Brianna Hawk and Kayla Martinez, were suspended for wearing "I heart Boobies" bracelets for breast cancer awareness and fundraising. These bracelets were banned by the school district on October 25, 2010 in accordance with similar bans throughout the United States. These two eighth graders were suspended from school when the students refused to remove these bracelets.

The plaintiffs of this case are the mothers of Brianna and Kayla, Jennifer Hawk and Amy McDonald Martinez. Along with the help of the ACLU, the strongly believe that the school children's rights of student expression were violated. On October 28th, both Brianna and Kayla were permitted by their mothers to wear their "I heart Boobies" bracelets since it was the school's Breast Cancer Awareness Day. On that same day, the assistant principal suspended the two girls from two days. The plaintiffs believe that the girls have "a constitutional right to the bracelets because they did not disrupt the school and were not lewd, profane or indecent" (ACLU.org.) They believed in no way did the bracelets constitute a material and substantial disruption (NBC.com.) The plaintiffs argue that these bracelets show great concern and the importance of breast cancer awareness that affects millions of women. The ACLU is asking a federal judge to create an emergency injunction against the school district's ban on the bracelets and to dismiss the punishments given to the girls, which prohibits the girls from attending school dances and participating in extra-curricular activities (ACLU.org.) Lastly, the plaintiffs argue that the dress code of the Easton Area School District is to vague and unconstitutional since it allowed the principal to prohibit any clothing that he believes is in "poor taste."

The defendant, The Easton Area School District, argues that the bracelets should be banned due to the context of the message and how it is preceived by the surrounding community. The administrators argues that the "students saw a sexual double entendre in the bracelet's message, and stressed that the district did not seek to ban the message but simply the offensive phrase" (NBC.com.) The school district believes there were other ways the girls could have expressed their support for breast cancer that would have been acceptable in an educational environment. The school district argues that the bracelets caused a major disruption within the classroom, which could not be controlled by normal discipline and authority.

On February 18, 2011, the oral argument for this case was held at the Federal Courthouse in Philadelphia, PA. Here is where both the plaintiff and the defendant made their arguments to a federal judge about the students' freedom of expression. The issue of whether these bracelets threatened a "material and substantial disruption" to the educational system was brought forward. The standard was set in the 1969 case Tinker v. Des Moines Independent School District (393 U.S. 503.) This case involved three students who wore black armbands to protest the Vietnam War. These students were suspended because the refused to remove the armbands when school officals insisted because they believed they would disrupt the class. The court ruled that the black armbands worn by the students were constitutional free speech. The administrators were unable to prove with factual evidence that the students' armbands were disrupting the classroom. Through this case, it was decided that school administrators must factually prove that the student expression does inhibit the educational process, not just predict it would.

It is evident that this case is exceedingly similar to the Tinker Case. The plaintiffs argued that the school administration greatly failed in formulating hard evidence that would that these bracelets caused a "material and substantial disruption." They argue that the school district cannot just say that the classroom would fall into chaos if these bracelets were allowed to be worn. The Easton Area School District rebuts these claims saying that this case is not similar to their issue and more importantly, these students have "alternative channels of communication" to express their support for breast cancer awareness.

These two girls who wore anti-cancer bracelets are very similar to the students who wore anti-war armbands. The girls were quietly seeking change and awareness for what they believe. In addition, the girls were given permission from their mothers to wear the bracelets. There has been no factual evidence put forward by the school district that would say that the girls caused a "material and substantial disruption" through wearing the bracelets. Due to this, the injunction should be granted and the girls' punishments should be revoked.

Another potentially important decision on free speech rights that corresponds with the case is Morse v. Frederick (2007,) also known as the "Bong Hits 4 Jesus" case (551 U.S. 393.) An 18-year-old student, Joseph Frederick, displayed a 14 foot banner outside his high school in Juneau, Alaska in 2002 during the Olympic torch rally. Principal Deborah Morse removed the banner and suspended Frederick for 10 days. Frederick sued saying his free speech rights were violated and this case was taken to the Court in 2007. The Court ruled that Frederick's rights were not violated because "it was reasonable for (the principal) to conclude that the banner promoted illegal drug use -- and failing to act would send a powerful message to the students in her charge" (Mears, CNN.)

Eventhough this case is not very similar to the "I heart Boobies" case, it showcases the stance the Court currently has on public school student's speech. This may not help the plaintiffs of the "I heart Boobies" case because the hidden messages of the bracelets could be denounced by the federal judge, just like the message on the banner. Both of these items could be interpreted in two different ways. Was the banner merely a lighthearted religious joke with little to no meaning or was it completely advocating the use of drugs like the Court ruled? Are the "I heart Boobies" bracelets displaying a lighthearted message in a unique way to showcase awareness for breast cancer or do the bracelets display a sexual play on words? If it is a sexual play on words, boys could be encouraged to display strong sexual behavior within the classroom, which could cause classroom disruption.

In the end, U.S. District Judge Mary A. McLaughlin ruled in favor of the plaintiffs and understood the bracelets were worn by the two girls for mere advocacy of breast cancer awareness. The district attorney, John E. Freund III, said he was let down by the decision and plans to discuss with school board administrators about possibly appealing.


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