The Easton Area School District will give the U.S. Supreme Court a chance to define the scope of a school’s authority to regulate student speech when it seeks certiorari in the case over “I ♥ boobies” breast-cancer awareness bracelets.

Last summer, the two students who were disciplined by the district won in a split en banc opinion from the U.S. Court of Appeals for the Third Circuit, which affirmed the students’ right to political speech.

“Because the bracelets here are not plainly lewd and because they comment on a social issue, they may not be categorically banned under Fraser,” Judge D. Brooks Smith wrote on behalf of the nine-judge majority in August, referring to the U.S. Supreme Court’s 1986 opinion in Bethel School District v. Fraser, which held that school administrators can limit lewd or vulgar forms of student speech.

“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,” Smith said.

The Third Circuit decided that speech that is not obviously lewd and speaks to a larger social issue can’t be banned by school administrators.

Five judges of the Third Circuit disagreed—Judge Thomas Hardiman and Judge Joseph Greenaway Jr. each wrote a dissent to the 74-page majority opinion.

John Freund, who represents the school district, said that he expects the Supreme Court will be most interested in the tension between Fraser and its 2007 decision in Morse v. Frederick, which ruled a school district was within its rights to regulate student speech promoting drug use.

The high court might also be interested in the larger issue of disciplinary decisions being removed from local values and authority and replaced with centralized judicial control, Freund said.

Courts have a long history of respecting local discretion, he said, calling the Third Circuit’s decision in this case a “brisk retreat” from that trend.

Mary Catherine Roper of the American Civil Liberties Union of Pennsylvania, who has been representing the students, was surprised that the district would seek cert in this case.

“I’m kind of surprised that the school district is working so hard to censor this breast-cancer awareness bracelet,” Roper said.
She said she doesn’t expect that the high court will have sufficient interest to take up the case, since likely the most interesting question is the interpretation, or misconstruction, of a socially important message.

“I’m not sure this is the case the Supreme Court would take” to address that issue, she said, because the record is so clean—there was no evidence of the “I ♥ boobies” language making any student a target for harassment or anything of that nature.

Rather, Freund had made a “slippery slope” argument to the first three-judge panel to hear arguments in the Third Circuit. He had argued that to allow the “I ♥ boobies” bracelet would lead to more vulgar phrases that advocate for testicular-cancer awareness, holding a half-dozen of the popular rubber bracelets used to advocate for various causes. One said, “Feel my balls,” while another said, “I ♥ cock.”

In clarifying the scope of Fraser—which was decided in 1986 after a high-school student gave a speech laden with sexual innuendo and allows school administrators to ban speech they deem to be lewd or vulgar—the majority in the Third Circuit’s opinion ruled that the school’s right to ban speech that could be reasonably construed as lewd or vulgar doesn’t extend to possibly offensive language that comments on social or political issues, like breast-cancer awareness.

The majority’s opinion extended Fraser to reach speech that is ambiguously lewd, but halted that extension when the speech touches the political or social realm.

“A school’s leeway to categorically restrict ambiguously lewd speech, however, ends when that speech could also plausibly be interpreted as expressing a view on a political or social issue,” Smith had said.

But, Freund said this week of that opinion’s interpretation of Fraser, “There is not a seed from which the majority’s test grows.” That is another issue in which the Supreme Court might be interested, he said.

Freund said that he would argue the case should it be taken up by the Supreme Court. So far, the litigation costs have been about $70,000 for the district, he said; most of that has been covered by insurance. About $23,000 has been paid by the district itself, he said.

Saranac Hale Spencer can be contacted at 215-557-2449 or sspencer@alm.com. Follow her on Twitter @SSpencerTLI.