I Heart Boobies
(Photo Courtesy of Keep A Breast Foundation)

The U.S. Supreme Court has let a win by two students—who challenged their school district on free-speech grounds after being disciplined for wearing “I ♥ boobies” breast-cancer awareness bracelets—stand after it decided not to hear an appeal from the district.

The Easton Area School District sought review from the U.S. Supreme Court in October, giving the high court a chance to define the scope of a school’s authority to regulate student speech.

The U.S. Supreme Court denied the school district’s petition for certiorari Monday.

Last summer, the two students who had been 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 necessarily be banned by school administrators.

That interpretation from the Third Circuit is at odds with Supreme Court jurisprudence, said John Freund, who represents the school district.

“Under the Third Circuit’s test, odds are” that 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—would be decided differently, Freund said. Under the Third Circuit’s standard applied in the “I ♥ boobies” case, Fraser would have likely had First Amendment protection, he said.

“That’s a substantial change in that line of cases,” he said.

Asked why, then, the high court wouldn’t have taken the opportunity to straighten the law, Freund noted the slim number of cases that are granted cert. “Maybe they did want to take it, but with 10,000 filings and 100 slots” there isn’t enough room, Freund said.

However, Mary Catherine Roper of the American Civil Liberties Union of Pennsylvania, who has been representing the students, said the Third Circuit’s opinion adds detail to the Supreme Court’s decision in Fraser.

The high court in that decision didn’t intend to silence a breast-cancer awareness campaign, Roper said.

There isn’t a big body of case law under Fraser because student-speech cases don’t often arise, which Roper attributed to the reluctance people generally have to suing their school districts and to the common understanding people have that schools need to keep order, meaning that there really needs to be a significant overreach of students’ speech rights to give rise to a suit.

This case, captioned B.H. v. Easton Area School District, was first heard on appeal by a three-judge panel of the Third Circuit and, in an unusual move, five months after those arguments were held the court announced that it would hear rearguments en banc.

All three of the original judges were in the dissent of the final en banc decision.

“Clearly what happened is they wrote an opinion that is similar to the dissent,” Nancy Winkelman, of Schnader Harrison Segal & Lewis, who practices appellate law, had said of the original panel’s opinion, which was never issued, and it generated enough concern in the court that that would be the law of the Third Circuit that a majority of the active judges wanted to rehear the case.

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 in the majority opinion.

“The majority’s approach vindicates any speech cloaked in a political or social message even if a reasonable observer could deem it lewd, vulgar, indecent, or plainly offensive,” wrote Judge Thomas Hardiman, one of the original three judges to hear the case, in his dissent.

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